UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE 
 
 LAW AND PRACTICE 
 
 BANKRUPTCY, 
 
 AS ALTERED BY THE NEW ACT, 
 
 (6 Geo. 4. c. 16.) 
 
 A COLLECTION OF FORMS AND PRECEDENTS 
 IN BANKRUPTCY, 
 
 PRACTICAL NOTES. 
 
 By EDWARD E. DEACON, Esq. 
 
 OF THE INNER TEMPLE, BARRISTER AT LAW. 
 
 IN TWO VOLUMES. 
 
 VOL. L 
 
 THE LAW AND PRACTICE OF BANKRUPTCY. 
 
 LONDON: 
 
 PRINTED BY A. STRAHAN, 
 
 l,AW-PRINTER TO THE KINg's MOST EXCELLENT MAJESTY J 
 
 FOR J. AND W. T. CLARKE, 
 
 LAW-BOOKSELLERS AND PUBLISHERS, 
 
 PORTUGAL-STREET, LINCOLN'S INN. 
 
 1827. 
 
 «^V
 
 T
 
 ^ SIR NICOLAS CONYNGHAM TINDAL, 
 
 TO 
 
 HIS MAJESTY S SOLICITOR GENERAL, 
 THIS WORK IS INSCRIBED, 
 
 AS AN HUMBLE BUT SINCERE TRIBUTE 
 OF ESTEEM AND ADMIRATION 
 
 FOR THOSE LEGAL TALENTS, AND THOSE PRIVATE VIRTUES, 
 
 WHICH HAVE GAINED HIM THE UNIVERSAL RESPECT 
 
 OF HIS PROFESSION, 
 
 AND HAVE DESERVEDLY RAISED HIM TO 
 
 THE EMINENT STATION HE OCCUPIES 
 
 AT THE ENGLISH BAR. 
 
 A 2 
 
 -7<?^ Q 9^
 
 PREFACE. 
 
 Some apology may be thought due to the pro- 
 fession, in thus offering to their notice a treatise 
 on an important branch of our jurisprudence, 
 which has lately been so ably discussed by 
 Mr. Eden, — and one, too, which (as the framer 
 of the two last statutes relating to bankruptcy) 
 he was so peculiarly well qualified to elucidate. 
 The only excuse that can be made for tliis pre- 
 sumption is, that great part of the following 
 work was composed before Mr. Eden even an- 
 nounced his intention to publish on bankruptcy ; 
 the Author having shortly after the passing of the 
 5 G. 4. c. 98. (which repealed all the former bank- 
 rupt laws) begun to prepare materials for a new 
 treatise on a subject, which he thought the pro- 
 fession would require from some one pen or other. 
 His work was nearly half completed when the 
 6G. 4. c. 16. unexpectedly repealed the whole of 
 the preceding statute ; and this^ together with 
 Mr. Eden's announcement of his book, induced 
 the Author for some time to give up his project in 
 despair. Upon consideration, liowever, it occurred 
 to him, that the held, although pre-occupied, was 
 
 A 3
 
 VI PIlErACK. 
 
 not perhaps entirely engrossed j and tliat there 
 might still be some room left for a common lawyer 
 to glean a few matters useful to the profession, upon 
 a subject involving so many points of commercial 
 law, which had been previously discussed only by 
 gentlemen practising in the Courts of Equity. 
 
 The Author is almost ashamed to acknowledge 
 the labour and*anxiety it has cost him in his endea- 
 vours to justify this attempt, notwithstanding the 
 great assistance he has derived from all those who 
 have trod the path before him ; more especially 
 firom the works of Mr. Cooke and Mr. Eden, and 
 (though last, not least) from those of his lamented 
 friend, the late Sir William Evans ; whose life, if 
 it had been some time longer spared, would have 
 been cheered in its decline by the reflection, that 
 the recent improvements in the bankrupt law have 
 principally sprung from the very able and original 
 suggestions contained in his notes on the former 
 statutes, and in his letter to Sir Samuel Romilly 
 on the necessity of their revision. 
 
 In the construction of the following treatise, the 
 Author has collected the law appertaining to the 
 duties of the SolicitOTy and the important question 
 of Costs^ into distinct chapters ; conceiving that 
 the numerous decisions which have accumulated 
 on each of these subjects, since the first publication 
 of works on bankruptcy, would render such an 
 arrangement more convenient for reference, than
 
 PREFACE. VI I 
 
 leaving those subjects scattered through diiierent 
 portions of the work. The same plan has been 
 adopted with respect to the functions of the Mes- 
 senger ; who, though a less important officer than 
 the solicitor, is one, nevertheless, whose duties 
 draw him into more immediate contact with the 
 property and personal liberty of the bankrupt, and 
 who incurs a heavy responsibility when he over- 
 ste2)s or neglects those duties. 
 
 Great pains have been taken in the framing 
 of a copious Index, — without which the very 
 best law book, however instructive to the student, 
 becomes wholly useless in the hurry of reference 
 to the practitioner; and the value of which can 
 only be appreciated by him, who is required on the 
 instant to put his finger on the very page for an 
 authority, to support, or to refute, an objection 
 suddenly raised in court. 
 
 - With respect to the practical part of the work, 
 the Author cannot omit this opportunity of ac- 
 knowledging the kind assistance rendered him by 
 John Pensam, Esq., the Secretary of Bankrupts. 
 
 The first part of this treatise has swelled to a 
 more bulky volume than the Author contemplated 
 when he began his labours ; but if he had pursued 
 the plan of Mr. Cooke, and given the judgments 
 pronounced in the different cases at full length, it 
 would not have been contained in tliree times its 
 
 A 4
 
 Vlll PREFACE. 
 
 present size, — so numerous have been the deci- 
 sions, and so various the new principles estabUshed 
 in the law of bankruptcy, since the work of Mr. 
 Cooke was pubHshed, 
 
 The last number of Messrs, Glyn and Jameson's 
 Reports in Bankruptcy having been pubHshed 
 after this work had gone completely through the 
 press, the Author has cancelled several pages, in 
 order to notice in the proper place those judg- 
 ments which have been reversed upon appeal by 
 the late Lord Chancellor. The other cases are 
 given by way of Addenda, and will be found, also, 
 in the general table of the names of cases cited. 
 
 With regard to the forms and precedents in 
 bankruptcy, the Author has in this respect adopted 
 the plan of Mr. Cooke, by allotting to them a 
 separate volume ; an arrangement which he trusts 
 will be more acceptable, than crowding them 
 as an appendix into the same volume with the 
 text ; for one branch of the profession has seldom 
 occasion to refer to them, whilst in the office of 
 the solicitor they are the subjects of frequent re- 
 ference. The greatest care has been taken to 
 render them correct, and conformable to the pro- 
 visions of the new statute ; and in order to make 
 them more practically useful, they have been prin- 
 cipally arranged as forming part of the business of 
 the particular meeting, to which they more imme- 
 diately belong. Explanatory notes have been also
 
 PKEFACK. ix 
 
 added to assist the practitioner, as well as notes ol 
 reference to that portion of the text in the first 
 volume, which bears upon the subject connected 
 with the precedent. 
 
 In the anxiety (which the Author cannot help 
 feeling) of thus appearing before the Public, he will 
 not attempt to crave the indulgence of his readers 
 for any imperfections in the following pages, by 
 the pretence so often urged, " of having been 
 distracted from his undertaking by the labours of 
 an arduous profession ;" — being fully impressed 
 with the truth of Dr. Johnson's observation, that 
 no book was ever spared out of tenderness to its 
 author ; and least of all can such unreasonable 
 mercy be expected to a defective work of science, 
 or jurisprudence, from a class of men not over 
 celebrated for their blindness to error, or their 
 forbearance to pretension. Whether the writer 
 of this treatise has duly discharged the debt, 
 which, Lord Bacon says, every man owes to his 
 Profession, the Profession must alone determine. 
 But whatever the result may be — whether of 
 censure or of praise — it will be some satisfaction 
 to his own mind, to be conscious that he has 
 spared no toil, or effort, to merit its approbation, — 
 and that by industry, at least, he has endeavoured 
 to do well. 
 
 Southampton Buildings, 
 May 1827.
 
 ADVERTISEMENT. 
 
 Another Bankrupt Act having been announced in the 
 House of Commons, and the bill actually brought in, a few 
 days after this book was published, the Author was induced 
 to stop the further publication of his work until this new bill 
 should pass into a law, in order that he might notice its 
 different provisions in the proper places of his text. Those 
 provisions were: 1st, To provide a remedy for the incon- 
 venience sustained by the interval that was allowed to 
 elapse between the repeal of the 5 G. 4. c. 98. and the 
 commencement of the operation of the 6 G. 4. c. 16. ; — the 
 Court of Common Pleas having lately decided (1) that a 
 commission could not be supported against a trader (who 
 was made a trader by these two statutes, but who was not 
 so under the former Bankrupt Laws,) upon an Act of Bank- 
 ruptcy committed during that interval, viz. between the 
 2d May and the 1st September 1825: 2dly, To repeal so 
 much of the 108 th section of the latter statute, as relates 
 to judgments by default, or nil dicit : 3dly, To limit a 
 period, after which the certificate {when once allowed) 
 should not be impeached : 4<thly, To make a supersedeas 
 (issued by the Lord Chancellor on the Composition con- 
 tract) as effectual in all respects, as the Certificate: and, 
 lastly. To give a reward to any person discovering un- 
 claimed dividends. After waiting to the close of the session 
 for the passing of this bill, the Author finds it did not even 
 oet throuffh the House of Commons ; the Parliament, there- 
 fore, being now prorogued, he again submits his book to 
 the judgment of the Profession. 
 
 July 2d, 1827. 
 
 (1) Maggs V. Hunt, H. T. 1827.
 
 TABLE OF CONTENTS 
 
 OF THE 
 
 FIRST VOLUME. 
 
 Page 
 
 Introduction i 
 
 CHAP. I. 
 Of the Jurisdiction of the Lord Chancellor. 
 
 1. Over the parties to the commission , 5 
 
 2. Over strangers to the commission »..., I4t 
 
 CHAP. II. 
 Of the Trading. 
 
 1. What persons are liable to bankruptcy.. 20 
 
 2. What is a sufficient trading 22 
 
 3. What is not a sufficient trading 32 
 
 4. Of the place where the trade must be carried on 39 
 
 CHAP. III. 
 Of the Act of Bankruptcy. 
 
 1. Of the general nature and effect of an act of bankruptcy 40 
 
 2. Of the several acts of bankruptcy specified in the statute 43 
 
 CHAP. IV. 
 
 Of the Petitioning Creditor. 
 
 1. Of the amount and nature of his debt 87
 
 Xii JAULli Ol' CONTENTS. 
 
 I'agc 
 
 Of the Petitioning Creditou — conlinucd. 
 
 % OF the time of the contracting and accruing ol' the clel)t JM' 
 3. General duties and liabilities of the petitioning creditor 100 
 
 CHAP. V. 
 
 Of the Commission. 
 
 1. Of issuing the commission 106 
 
 2. Of the general effect of the commission P23 
 
 3. Of a second commission 126 
 
 4. Of a joint commission 128 
 
 5. Of renewed and auxiliary commissions 133 
 
 6. Remedy where the commission is maliciously sued out... 134; 
 
 CHAP. VI. 
 Of the Meeting to open the Commission 138 
 
 CHAP. VII. 
 
 Of th:? Commissioners. 
 
 1. Of their general jurisdiction, 143 
 
 2. Of their power over the bankrupt 148 
 
 3. Of their power over the bankrupt's property 152 
 
 4. Of their power over other persons 153 
 
 5. Of the protection and indemnity of witnesses and other 
 
 persons attending the commissioners 160 
 
 6. Of the custody of the depositions and proceedings 163 
 
 7. Of actions and other proceedings against the commis- 
 
 sioners 164 
 
 CHAP. VIII. 
 Of the Messenger 169 
 
 CHAP. IX. 
 
 Of the Proof of Debts. 
 
 1. Of debts in general, and herein of the rights and duties 
 
 generally of creditors 176
 
 TABT.F. or CONTENTS. xiii 
 
 Page 
 
 Of the Proof of Debts — continued. 
 
 2. Of the creditor's election 183 
 
 3. Time of proof 192 
 
 4-. Manner of proof 193 
 
 5. Of judgment creditors 196 
 
 6. Of creditors having a mortgage, or an equitable lien 198 
 
 7. Debts payable inJiUiiro 212 
 
 8. Contingent debts ib. 
 
 9. Creditors by raarriage'articles 215 
 
 10. Creditors of a bankrupt executor or trustee, and herein 
 
 of the executors of a creditor 222 
 
 11. Creditors by annuities 227 
 
 12. Servants, apprentices, and children 233 
 
 13. Awards 235 
 
 14. Bonds ih. 
 
 15. Bills of exchange and promissory notes, and herein of 
 
 cross paper demands 239 
 
 \Q. Of policies of insurance „ 264« 
 
 17. Rent 265 
 
 18. Interest 269 
 
 19. Costs 274- 
 
 20. Damages 280 
 
 21. Sureties 285 
 
 22. Creditors by composition 297 
 
 23. Friendly society act 299 
 
 24. Rates and taxes 301 
 
 25. Debts illegal and void 302 
 
 26. Of claiming a debt 307 
 
 27. Of expunging a proof 309 
 
 CHAP. X. 
 
 Of the Assignees. 
 
 1. Of a provisional assignee 312 
 
 2. Of the choice of assignees 313 
 
 3. Of the interest they take by the assignment 320 
 
 4. Of the nature of their trust, and herein 322 
 
 1. Of their general authority, duty, and liability ib. 
 
 2. Of their duty, more especially in collecting and 
 
 disposing of the bankrupt's property 330
 
 XIV TABLE OF CONTENTS. 
 
 Page 
 
 Of the Assignees — continued. 
 
 5. When assignees become bankrupt 340 
 
 6. Of the removal of assignees 342 
 
 CHAP. XL 
 Of the Assignment by the Commissioners 347 
 
 Part 1. 
 
 1. Of freehold property generally, and the mode of con- 
 
 veyance 348 
 
 2. Of copyholds 354 
 
 3. Of mortgages 356 
 
 4. Of offices 358 
 
 5. Of advowsons 360 
 
 6. Of reversions 361 
 
 7. Of powers ib. 
 
 8. Of a possibility 363 
 
 9. Of a voluntary conveyance 365 
 
 10. Of an executory or beneficial contract 367 
 
 11. Of the estate of the wife, and property settled by the 
 
 bankrupt on his wife and children 370 
 
 Part 2. 
 
 1. Of the personal property in general 382 
 
 2. Of debts and choses in action 385 
 
 3. Of leases and annuities, and herein of forfeitures upon 
 
 alienation 390 
 
 4. Of property abroad 399 
 
 5. Of property in the possession, order, or disposition of 
 
 the bankrupt, as reputed owner 402 
 
 1. What things are within the statute , 403 
 
 2. WhdX possession is within the statute 405 
 
 3. Possession as factor, banker, or broker 426 
 
 4. Possession as trustee, executor, or administrator 435 
 
 6. Of property fraudulently delivered in contemplation of 
 
 bankruptcy 439 
 
 7. Of goods in transitu, and herein of the right of stoppage 449 
 
 8. Of goods sent, but not accepted, and of goods ordered, 
 
 but not delivered 470
 
 TABLE OF CONTENTS. XV 
 
 Page 
 
 Of the Assignment by the Commissioners — continued. 
 
 9. Of goods subject to alien ,... 476 
 
 10. Of the claims of the crown 490 
 
 CHAP. XII. 
 Of the Dividend. 
 
 J. Of the first dividend 497 
 
 2. Of the second and final dividend 502 
 
 3. Of unclaimed dividends 503 
 
 4. How a dividend is to be recovered 504' 
 
 CHAP. xni. 
 
 Of the Bankrupt. 
 
 1 . Of the duties of the bankrupt, and herein of his surrender 507 
 
 2. Of the examination of the bankrupt 513 
 
 3. Of the bankrupt's answers 519 
 
 4. Of committing the bankrupt, and of the remedies for his 
 
 discharge 525 
 
 5. Of the bankrupt's rights and privileges: 535 
 
 1. Of his privilege from arrest ib. 
 
 2. Of his maintenance during his examination 543 
 
 3. Of his allowance under the commission 544 
 
 4. Of his right to the surplus 548 
 
 5. Of his right to acquire property before obtaining his 
 
 certificate 551 
 
 6. Of actions at law by and against an uncertificated 
 
 bankrupt 552 
 
 7. Of suits in equity 559 
 
 CHAP. XIV. 
 Of the Certificate. 
 
 1. Of the signature of the creditors 563 
 
 2. Of the signature of the commissioners 572 
 
 3. Of the allowance by the Lord Chancellor ; and herein 
 
 of opposing the allowance and recalling the certificate 
 after allowance 575 
 
 4. Of the practice on petitions to stay the certificate 587 
 
 5. When the certificate is void ., 593
 
 XVI TABLE or CONTENTS. 
 
 I'age 
 
 Of the Certificate- — continued' 
 
 6. Effect of the certificate 595 
 
 7. Of pleading the certificate ; and herein of the evidence 
 
 to support it, or defeat it 614 
 
 8. Of discharging a certificated bankrupt 621 
 
 9. Of the bankrupt's habihty on a new promise 624 
 
 CHAP. XV. 
 
 Of Partners. 
 
 1. Of the effect of bankruptcy generally as to the relation 
 
 between partners ; and herein more particularly of the 
 effect of a separate commission against one or more of 
 the partners 629 
 
 2. What is joint and what is separate property under a 
 
 joint or separate commission 637 
 
 3. What is a joint and what a separate debt 643 
 
 4. Of proof by joint creditors under a joint commission 646 
 
 5. Of proof by separate creditors under a joint commission 654 
 
 6. Of proof by creditors holding joint and several securities ; 
 
 and herein of the creditor's election against the joint or 
 separate estates.... 657 
 
 7. Of proof between partners and different firms composing 
 
 one general partnership 664 
 
 CHAP. XVI. 
 Of Relation to the Act of Bankruptcy. 
 
 1. As to payments made by or to the bankrupt 674 
 
 2. As to purchasers... 685 
 
 3. As to other dispositions of the bankrupt's property 689 
 
 4. As to judgments, executions, and attachments 692 
 
 5. As to notice of an act of bankruptcy 695 
 
 CHAP. XVII. 
 Op Set-off. 
 
 1. Of the right of set-off* generally in bankruptcy 698 
 
 2. Construction of the term " mutual credit," and herein of 
 
 cases of trust and deposit 701 
 
 3. As to joint and separate debts , 708
 
 TABLE OF CONTENTS. Xvii 
 
 Page 
 Of Set-off — continued. 
 
 4. Set-ofF between particular persons 711 
 
 5. Set-oft' on bills and notes 718 
 
 6. Of an equitable set-off" 720 
 
 7. Of the mode of balancing the accounts 724- 
 
 CHAP. XVIII. 
 
 Of Suits at Law and in Equity by and against the 
 Assignees. 
 
 1. Of suits in equity ,,, 726 
 
 2. Of actions at law ; and herein of proceedings against the 
 
 sheriff" 730 
 
 3. Eff'ect of the bankruptcy upon suits previously com- 
 
 menced by the bankrupt 751 
 
 CHAP. XIX. 
 
 Of the Evidence required to support the Commission in 
 Actions by or against the Assignees. 
 
 1. Where notice is given to dispute the commission 759 
 
 2. Where a party is not entitled to give such notice 777 
 
 3. Where no notice is given 780 
 
 4. Where no proof of the title of the assignees is necessary 781 
 
 5. As to the admissibility of the depositions and proceed- 
 
 ings under the commission 784 
 
 6. Of the competency of the bankrupt and his wife as wit- 
 
 nesses c 791 
 
 7. Of the competency of creditors. 799 
 
 CHAP. XX. 
 Of superseding a Commission. 
 
 1. Of applications for a supersedeas by the bankrupt 803 
 
 2. Of the like by other persons 819 
 
 3. Of the practice upon petitions for a supersedeas 824 
 
 4. Of the eff"ect of the supersedeas 830 
 
 5. Of the writ o( procedendo 833 
 
 CHAP. XXI. 
 
 Of the Practice of the Court on Petition in Bankruptcy 835 
 
 a
 
 XVlll TABLE OF CONTENTS. 
 
 Page 
 
 CHAP. XXII. 
 Of Costs. 
 
 1. Of the costs of issuing a commission up to the choice of 
 
 assignees 84<5 
 
 2. Of subsequent costs 847 
 
 3. Of costs upon petition 850 
 
 4. Of costs in actions and suits by and against assignees, 
 
 and other parties concerned in the commission 857 
 
 5. When security for costs will be required 861 
 
 CHAP. xxni. 
 
 Of the Solicitor to the Commission. 
 
 1. Of his general rights and duties 865 
 
 2. Of his lien for costs 871 
 
 3. Of the taxation of his bill, and his remedy for payment 
 
 of it 877 
 
 4. Of actions and other proceedings by and against him ... 887 
 
 5. Of his liability for misconduct, and herein of a solicitor's 
 
 general liability 897 
 
 Addenda of Cases 997
 
 INDEX 
 
 OF THE 
 
 CASES CITED. 
 
 A.ARON, Cave V. 
 Abbott, Carter v. 
 
 V. Plumbe 
 
 , Rex V. 
 
 V. Rice 
 
 Abell, Ex parte 
 
 V. Sutton 
 
 Abery v. Williams 
 Abraham v. George 
 Abrahams, Ward v. 
 Ackerman, Ex parte 88 
 
 V. Humphrey 
 
 Ackroyd, Ex parte 
 Adam, Ex parte 
 Adams, Ex parte 
 
 V. Claxton 
 
 V. Malkin 
 
 , Noble V. 455 
 
 V. Peirce 
 
 , Rex V. 
 
 Adamson v. Armitage 
 
 , Nias V. 
 
 Addis V. Knight 
 Adney, Ex parte 
 Agate, Button v. 
 Aickles, Rex v. 
 Aiken, Ex parte 
 Ainsworth, Ex parte 
 Akers, Wood v. 
 Akhurst v. Jackson 
 
 
 Page 
 
 - 
 
 900 
 
 - 
 
 793 
 
 761. 
 
 771 
 
 201 
 
 333 
 
 - 
 
 877 
 
 806 
 
 824 
 
 - 
 
 631 
 
 - 
 
 687 
 
 - 
 
 763 
 
 - 
 
 858 
 
 . 123. 
 
 647. 
 
 
 652 
 
 
 458 
 
 - 
 
 181 
 
 - 
 
 660 
 
 578 
 
 672 
 
 - 
 
 211 
 
 - 24 
 
 799 
 
 . 557 
 
 862 
 
 373 
 
 374 
 
 - 
 
 491 
 
 - 
 
 378 
 
 337 
 
 556 
 
 - 
 
 709 
 
 - 
 
 287 
 
 - 
 
 887 
 
 - 
 
 772 
 
 - 
 
 429 
 
 271. 
 
 1005 
 
 - 
 
 714 
 
 - 
 
 388 
 
 Alcock, Ex parte 
 Alderson, Ex parte 
 
 — V. Temple 
 
 Alderton v. Scrimshire 
 Aldrich, Vigers v, 
 Aldridge, Ex parte 
 
 V. Ireland 
 
 Alldritt V. Kittridge 
 Alexander, Ex parte 
 
 = V. Vaughan 
 
 Allan V. Hartley 
 Allanson v. Atkinson 
 
 , Foster v. 
 
 Allen, Ex parte 243 
 
 V. Cannon 
 
 V. Downes 
 
 V. Impett 
 
 V. Kilbie 
 
 , Yeo V. 
 
 Alley V. Hodson 
 Allison, Ex parte 
 Allnutt, Ex parte 
 Alsop, Ex parte 
 
 V. Brown 
 
 t;. Price 
 
 Alves V. Hodgson 
 Ambrose v. Clendon 
 
 Scott V. 
 
 Page 
 215 
 
 423 
 442 
 428 
 100 
 
 - 878 
 49, 50. 749 
 
 - 1001 
 
 - 206 
 38.41 
 
 42. 128 
 678. 747 
 
 - 683 
 577. 852. 
 
 854 
 
 - 39 
 
 - 128 
 
 - 380 
 
 - 638 
 
 - 622 
 
 - 445 
 8. 842. 853 
 
 - 139 
 
 - 506 
 
 - 625 
 - 287. 617 
 
 210. 245 
 
 60. 89. 96. 
 
 770 
 
 - 279 
 
 , Scott V. . 279 
 
 Anderson, Ex parte 154. 583.592. 
 836. 841. 844 
 a 2
 
 XX 
 
 INDEX or THE CASES CITED. 
 
 Page 
 
 Anderson, Bamfield v. 602. 607 
 
 ., Camden v. - 642 
 
 , Dodsworth v. 39 
 
 , Doe V. - 69. 89 
 
 V. George - 24-3 
 
 . , Hammond v. - 4'55 
 
 . V. Hampton - 540 
 
 . , Harman v. 413. 454 
 
 , Holbird V. - 446 
 
 V. Maltby - 641 
 
 V. May - 891, 892 
 
 V. Mottley - 320 
 
 French v. 
 
 Andrade 
 Andrews, Ex parte 
 
 — V. Palmer 
 
 . V. Sealy 
 
 — V. Spicer 
 
 - 710 
 210. 484 
 
 - 124 
 
 - 858 
 
 - 683 
 
 - 657 
 
 - 751 
 
 - 203 
 
 - 22 
 385. 575. 601 
 
 - 199 
 487, 488 
 
 - 1001 
 
 - 765 
 
 - 357 
 
 - 463 
 644. 656 
 
 - 447 
 
 - 706 
 412.416 
 
 Archer, Ex parte (2 G. & J.) 1001 . 
 
 1002 
 
 ^ , Griffin V. 
 
 Mayo V 
 
 Angerstein, Ex parte 
 Anon. (1 Atk.) 
 
 (2 Mad.) 
 
 . (3 Ves.) 
 
 Ansell, Ex parte 
 Ansley, Ex parte 
 Anson, Lord, Winter v. 
 Anthony, Ex parte - 
 Antram v. Chace 
 Applebee, Edwards v. 
 Appleby v. Pollock 
 Apsey, Ex parte 
 Arbouin v. Hanbury 
 
 — V. Tritton 
 
 . V. Williams 
 
 561. 
 
 Arden v. Sharp e 
 
 • V. Lambey 
 
 Arding v. Flower 
 Arkley, Ex parte 
 Armitage, Adamson v. 
 
 , Govett V. 
 
 Armour v. Campbell 
 Arnaud, Sturdy v. 
 Arnold, Queen v. 313 
 Arnott, Davis v. 
 Arrowsmith, Ex parte 
 
 728 
 
 - 33 
 
 - 643 
 
 - 900 
 5. 160. 539 
 
 - 210 
 
 - 378 
 
 - 560 
 
 - 606 
 
 - 740 
 694. 409 
 
 - 601 
 808, 809. 
 
 878. 899. 900 
 Barfbrd - 889 
 
 Page 
 227 
 191 
 903 
 742 
 
 1005 
 
 - 623 
 
 - 300 
 
 - 610 
 9 
 
 95. 778, 779 
 
 - 300 
 
 - 484 
 
 - 652 
 844. 854 
 
 - 251 
 - 857 
 
 V. Tredgold . - 242 
 
 Atkinson, Ex parte, 291. 505. 853 
 
 , Allanson v. 678. 747- 
 
 V. Burton - - 900 
 
 V. Cotesworth - 486 
 
 Elliott 701. 705. 708 
 
 Artis, Ex parte 
 Arundel, Ex parte 
 Ashbourn v. Price 
 Ashbrooke v. Manby 
 Ashby, Rowland v. 
 Ashdown u. Fisher 
 Ashley, Ex parte 
 
 V.Hill 
 
 Ashton, Curtis v. 
 Askew, Clarke v. - 
 Askwith, Ex parte 
 Aspenall v. Pickford 
 Aspinwell, Ex parte - 
 Astell, Ex parte 
 Atkins, Ex parte 
 Seward 
 
 V. Maling - 
 Wall u. 
 
 , Wall u. - lyt 
 
 Attorney-General v. Capell 
 , Crawford 
 
 - 419 
 
 196. 539 
 
 695 
 
 V. Elwall 
 V. Ross 
 V. Senior 
 
 Atwood, Ex parte 
 
 , Hammond v. 559, 560 
 
 Audley v. Halsey 349. 490. 695 
 Anriol v. Mills - 284. 303. 598 
 
 792 
 490 
 496 
 495 
 334 
 559, 560 
 
 Auriol V. Mills 
 Austen v. Ward 
 Austin V. Craven - 
 
 V. Halsey 
 
 , Sarratt i\ 
 
 , Waugh V. - 
 
 V. Whitehead 
 
 Aylett's case 
 
 Harford 
 
 Aylmer, Gerard v- 
 Ayton, Reid v. 
 
 B 
 
 Back V. Gooch 
 Backhouse v. Tarleton 
 
 - 1004 
 
 - 454 
 
 - 487 
 
 - 97 
 
 - 753 
 
 - 495 
 
 - 161 
 190. 275 
 383. 385 
 
 - 446 
 
 - 69 
 
 32. 129
 
 INDEX OF THE CASES CITED. 
 
 XXI 
 
 Bacon,. Ex parte 
 
 , Brind v. 
 
 V. Maine 
 
 Back, Rex v. 
 
 Backwell's case 
 
 Badger, Ex parte - 
 
 Baglehole, Ex parte 92. 203. 390 
 
 Page 
 
 - 384 
 
 - 794 
 
 - 798 
 887. 897 
 114. 133 
 199. 270 
 
 Baikie v. Chandless 
 Bailey, Bateman v. 
 
 , Dillon V. 
 
 , Dinwiddle v. 
 
 V. Vincent 
 
 Bainbridge, Ex parte 
 
 V. Pinhorn 
 
 Baines, Ex parte 
 Baker, Ex parte 
 
 V. Harris 
 
 , Horn V. 
 
 , Leonard v. - 
 
 V. Ridgway 
 
 , Rush V. 
 
 Baldwin, Dixon v. 
 
 — , inre 117, 118 
 
 901 
 60. 770. 
 624. 626 
 
 - 721 
 11.561 
 
 342. 344 
 198. 350 
 
 - 855 
 127. 235. 337. 
 
 609. 812 
 
 - 207 
 - 403. 409 
 
 64. 408 
 
 - 832 
 
 - 747 
 448. 454 
 249. 818 
 
 - 445 
 
 - 485 
 
 - 266 
 
 Balfour, Wilson v. 
 Balham, Justin v. 
 Ball, Bradyll v. 
 
 , Mills V. 451, 452, 453. 471 
 
 , Neale v. - - 472 
 
 , Stewart v. - 34. 767 
 
 Ballantine v. Golding - 605 
 
 Ballard, Bayley v. - - 447 
 
 , Jelfs V. - 609. 619 
 
 , Perrott v. - 521 
 
 Balme v. Paver - - 1007 
 
 Bamfield v. Anderson 602. 607 
 
 Bamford, Ex parte 32. 41. 49. 55, 
 
 56. 135 
 
 V. Baron - 42. 69. 406 
 
 V. Burrell 176, 177. 194. 
 
 596 
 Banglay, Ex parte 303, 304. 582. 
 
 584 
 
 Bank of England, Ex parte 194. 
 
 317. 661 
 
 V. Newman 247 
 
 Bankes, Pattison v. - 228 
 
 Banks, Ex parte - - 658 
 
 Banks v. Scott 
 Bannister v. Scott 
 Bantock, Hockley v. 
 Barber, Ex parte 
 
 , re 
 
 ■ , Ludford v. 
 
 , Marston v. - 
 
 , Warner v. - 
 
 , Williams v. 
 
 Barchard, Seville v. 
 Barclay, Ex parte 180. 
 
 , Carter v. 
 
 Curtis V. 
 
 V. Faber - 
 , Hammonds v. 
 
 Laing v. 
 
 Smith V. - 
 
 Barfit, Ex parte - 
 Barford, Arrowsmith u. 
 Barker, Ex parte 
 , Best V. 
 
 V. Dacie - 
 
 , Delaunay v. 
 
 u. Goodair 630. 
 
 99. 
 
 284. 
 
 47. 
 
 211. 
 
 244, 
 692, 
 
 479 
 791. 
 
 213. 
 
 633. 
 
 V. Bishop of London 
 
 Parker v. 
 
 Barkley, Jones v. 
 Barnard v. Palmer - 
 
 • , Ranking v. ' 
 
 V. Vaughan 
 
 , Wall V. 
 
 Barned, Ex parte 
 Barnes v. Freeland 
 
 • V. Mat on 
 
 , Rose V. 
 
 , Starey v. 
 
 , W^alker v. 
 
 31 
 568. 
 
 101 
 
 Barnsby's case 
 Baron, Bamford v. 
 Barron, Ex parte 
 Barr, Ex parte 
 Barrington, re 
 Barratt, Ex parte 
 Barrow, Ex parte 
 
 - 753, 7 
 
 276. 
 42. 69. 
 
 Coles V. 
 
 - 252. 
 100. 111. 
 640. 807. 
 
 Page 
 550 
 284 
 999 
 824 
 998 
 598 
 89 
 320 
 892 
 483 
 
 243, 
 315 
 737 
 723 
 540 
 486 
 868 
 731 
 323 
 889 
 215 
 627 
 897 
 414 
 
 638. 
 683 
 886 
 768 
 571 
 80 
 714 
 48 
 735 
 653 
 472 
 754 
 763 
 242 
 278 
 100 
 406 
 550 
 517 
 246 
 310 
 
 418. 
 870 
 556 
 
 a 3
 
 xxu 
 
 INDEX OF THE CASES CITED. 
 
 Burrow v. Foster 
 
 Macarty v. 
 
 - 55 
 96. 242 
 
 - 752 
 
 Barry, Ex parte 
 Bartholomew v. Sherwood 29. 33. 
 
 767 
 Barthrop, Moore v. - - 426 
 Bartlett, Linton v. 65. 72. 443 
 
 — V. Tuchin - 333. 833 
 
 . Oliver V. - - 406 
 
 Barton, Ex parte - - 61 
 
 French v. - - 752 
 
 Bartsch, Kitchen v. - - 556 
 Barwell v. Ward - 233. 687 
 
 Barwick, Atkln v. - - 471 
 
 V. Read - , - 360 
 
 Barwis, Ex parte 21. 100. 805 
 
 Wray v. - 743. 859 
 
 Basarro, Ex parte - 316. 580 
 Bass, Ex parte - 805. 822 
 
 Bassivi v. Serra - - 373 
 
 Bate, Ex parte - 547. 658 
 
 Bateman's case - 32. 366 
 
 V. Bailey - 60. 770 
 
 Bates, Carstairs v. - - 433 
 Bateson v. Ilartsink 618. 790. 868 
 Bathurst, Fletcher v. - 230 
 
 Batson, Ex parte 319. 420. 665 
 
 Latimer v. - 408 
 
 Battier, Ex parte - 69. 115 
 
 Battye v. Gresley 155. 162. 167. 
 
 530. 849 
 Baiulier, Ex parte - 128. 647 
 Bauer, Page v. - - 740 
 
 Baughan, Darby v. - 537- 539 
 Baxter, Iloule v. - - 250 
 
 V. Nicholls - - 596 
 
 Bayley v. Ballard - - 447 
 
 V. Burning - - 693 
 
 V. Morley - - 428 
 
 V. Schofield 49. 52. 59. 
 
 675. 697 
 Bayne, Ex parte - - 160 
 Baynes v. Fry - - 303 
 
 Bayntree, Dewey v. - 64 
 
 Beadnell, Smith v. - 158. 788 
 Beale, Ex parte - 125. 141. 351 
 
 Hunter v. - 451. 453 
 
 . Pryn v. - - 683 
 
 Bean, Ex parte - - 818 
 
 Bearcroft, Ex parte 
 Beard, Longmead v. 
 V. Webb 
 
 Page 
 
 - 884 
 
 - 615 
 .. - 21 
 
 Beardmore v. Cruttenden 195. 
 224. 291 
 Beasley v. Beasley 125. 128. 140 
 Beatson, Thompson v. 444. 679 
 Beauchamp v. Tomkins - 623 
 Beaufoy, Ex parte 255. 257- 290 
 Beaumont, Geary v. - 226 
 
 Bebb, Ex parte - 341. 501 
 
 Beck V. Welsh - - 357 
 
 Beckwith, Ex parte - 818 
 
 Beddam, Ex parte 12. 353. 836 
 Beddome v. Holbrooke 602. 621 
 Bedford v. Deakin - 288. 645 
 
 , Dommett v. - 391 
 
 V. Woodham 226. 439 
 
 Beeston v. White - - 276 
 Beilby, Ex parte 225. 373. 378 
 Belch V. Symes - - 874 
 
 Belchier, Ex parte - - 326 
 Bell, Ex parte (1 C. B. L.) 872 
 
 (1 G.&J.) 366.371. 
 
 840 
 
 (IM. &S.) 
 
 — (1 Mont.) 
 
 (15Ves.) 
 
 Cohen v. 
 
 V. Dunsterville 
 
 — — Hodgson V. 
 
 Poole V. 
 
 V. Tinney 
 
 Bellamy, Field v. 
 Bellaris, Brown v. 
 Bellott, Ex parte 
 — Hewitt V. 
 
 305 
 246 
 
 - 25 
 
 - 862 
 
 - 324 
 256. 290 
 
 - 760 
 
 - 780 
 42. 58 
 
 - 441 
 839. 890 
 
 - 896 
 
 - 195 
 
 - 774 
 
 Belton, Ex parte 
 
 Bencroft, Lowfield v. , , . 
 
 Benfield v. Solomons 303.559,560 
 Benjamin, Ex parte - 111. 192 
 Bennett, Ex parte (2 Atk.) 179. 
 270. 299 
 
 (lOVes.) 18. 
 
 147. 336. 866 
 
 , Cockshott V. 570, 571. 
 
 626 
 
 , Cole V. - 217. 876 
 
 V. Davies 222. 371. 377
 
 INDEX OF THE CASES CITED. 
 
 XXIII 
 
 Bennett v. Farnell 
 
 V. Gandy 
 
 . V. Hart 
 
 V. Johnson 
 
 , Lock V. 
 
 , Mills V. - 41. 
 
 , Penn v. 
 
 • • V. Spackman 
 
 Benson, Ex parte 162. 
 
 ■ V. Flower 
 
 , Ocklestone u. 
 — — , Sherwood v. 
 
 — , Townrow v. 
 
 Bent V. Puller 
 Bentall v. Burn 
 Bentley, Ex parte 
 Benton v. Garcia 
 
 , Graham v. - 
 
 Beresford v. Birch 
 
 V. Hobson 
 
 Berks v. Wigan 
 Bernal, Ex parte - 13. 
 Bernardiston, Watkinson 
 
 Berney v. Davison 
 
 V. Vyner 
 
 Berry, Ex parte 
 Berryman, Ex parte 
 
 V. Wise 
 
 Besford v. Saunders 
 Best V. Barker 
 Bevan, Ex parte 
 
 Doe V. 
 
 Bevis, Evans v. 
 Bewdley, Rex v. 
 Beyer, Kretchman v. 
 Bibbins v. Mantell 
 Bickerdyke v. BoUman 
 Biddulph, Garrett v. 
 Bidley, Ex parte 
 Bigg, Ex parte 
 
 V. Spooner 
 
 Biggs V. Cox 
 
 , Hart V. - 
 
 , Lingham v. 
 
 Bignold, Ex parte 
 Bilke, Butts V. - 
 Billiald, Ex parte 
 
 126. 
 826. 
 
 Page 
 
 - 244 
 349. 776 
 
 - 881 
 
 - 483 
 
 - 700 
 774. 783 
 
 - 624 
 
 - 681 
 660. 849 
 
 - 387 
 
 - 727 
 
 - 622 
 
 - 721 
 
 - 482 
 
 - 1002 
 578. 658 
 
 - 894 
 
 - 275 
 
 - 340 
 
 - 373 
 
 - 760 
 791.832 
 V. 484, 
 
 485 
 
 - 74 
 
 - ib. 
 
 - 367 
 
 - 510 
 
 - 893 
 
 - 626 
 
 - 627 
 
 - 658 
 124. 390 
 
 - 882 
 
 - 490 
 753, 754 
 753, 754 
 
 90. 243. 
 
 - 807 
 
 - 659 
 
 - 661 
 
 - 49 
 740. 753 
 330. 871 
 
 - 408 
 227. 340 
 554. 613 
 851. 855 
 
 Billings V. Waters 
 ""'Ion, Ex parte 
 iford V. Dommctt 
 igham, Ex parte 
 ngley v. Maddison 
 nkes, Spragg v. 
 nmer, Ex parte 
 
 ^ „ V. Tetby 
 
 Birbeck, Eyre u, 
 "lirch, Ex parte 
 
 Bilk 
 
 Bi 
 
 Bi 
 
 Bi 
 
 Bi 
 
 B 
 
 Binns 
 
 Bi 
 
 Bi 
 
 •, Dale V. 
 ■, Heanny v. 
 ; M'George u. 
 ■, Rudge V. 
 ■ V. Sharland 
 , Walker v. 
 , Watkins v. 
 
 • 102. 173 
 
 - 190 
 
 - 418. 645 
 
 - 640 
 - 96. 251 
 
 - 559 
 42. 82. 822. 
 
 - 793 
 - 42. 82 
 
 197. 276, 277. 
 281. 578 
 
 - 388 
 29 
 
 749, 750 
 712 
 
 7 . . **. 
 
 Bird, Paul v. 
 
 , Mayor v- 
 
 ; Wright V 
 
 Birdwood, Ex parte 
 V. Raphael 
 
 Birkett, Ex parte 
 ■ V. Jenkins 
 Birley v. Gladstone 
 
 Birnie, Pasmore v. ^^^. ^^^ 
 
 Bishop, Ex parte - - 852 
 
 V. Crawshay 475. 680. 686 
 
 V. Church - 504. 711 
 
 - 626 
 
 - 480 
 64. 408 
 
 - 427 
 
 - 24 
 
 - S3 
 
 - 841 
 
 - 211 
 675. 682 
 
 - 451 
 
 - 486 
 329. 889 
 
 852 
 
 V. Church 
 
 V. Huggins 
 
 Bisse V. Randall 
 Bize V. Dickason 
 Black, Ex parte 
 
 V. Thorne 
 
 Blackbourn v. Ogle - 
 Blackburn, Ex parte 
 
 V. Gregson 
 
 Stupart 
 
 V. oiupaiL 
 
 Blackerby v. Schelinger 
 Blackett, Thackray v. 
 Blackmore, Ex parte - 
 Blackwood, Cathcart v. 
 
 Blades, Reed v. 
 
 , Wyatt V. 
 
 Blagden, Ex parte 
 Blake, Ex parte 
 
 a 4 
 
 504. 
 
 873 
 779 
 
 - 715 
 582. 592. 850 
 
 - 790 
 
 - 627 
 
 - 248 
 
 - 487 
 
 - 832 
 
 - 359 
 
 - 244 
 35.104 
 
 359, 360. 
 594 
 
 - 64 
 
 - 747 
 713. 722' 
 
 - 665
 
 XXIV 
 
 INDEX OF THK CASES CITED. 
 
 Blake v. Nicholson - 
 Blakelock, Foster v. 
 
 , Stevenson v. 
 
 Blakey, Ex parte 
 Blankenhagen, Ex parte 
 Bland, Ex parte 
 
 -, Goldsmith v. 
 
 , Pakenham v. 
 
 Blandford v. Foote 
 Blaydes, Ex parte 
 Bleasby v. Crossley 90. 
 
 Blewitt V. Marsden 
 Blicke, Parker v. 
 Blissard v. Hurst 
 Blogg V. Phillips 
 Bloodworth, Bradford v. 
 Bloxam, Ex parte 
 
 ■i V. Sanders 
 
 V. Morley 
 
 Bloxham, Ex parte 239. 
 
 . V. Hubbard 
 
 Boardman, Ex parte 
 
 V. Sill 
 
 Boddy V. Esdaile . - 
 Boden V. Dellow 163. 
 Bodington, Wilks v. 
 Boehm v. Stirling 
 Bogen, Ex parte 
 Boheme, Smith v. 
 Bohtlinck v. Inglis 
 Bold, Ex parte 
 Boldero, re - - 
 
 Bolitho, Ex parte 
 Bolland v. Bygrave - 
 Bollman, Bickerdyke v. 
 Bolton, Ex parte 228. 
 
 V. Jager 
 
 — — — , Kaye v. 
 I- V. Puller 
 ' V. Sowerby 
 
 Bonbonus, Ex parte 
 
 Bond, Ex parte 
 Bonham's case 
 
 644 
 
 Page 
 
 - 484 
 
 - 902 
 872, 873 
 
 88. Ill 
 
 - 658 
 157. 484 
 
 - 243 
 
 - 60 
 
 - 274 
 185.579 
 
 , 97. 762. 
 769. 997 
 
 - 900 
 
 - 355 
 
 - 243 
 
 - 675 
 61. 689 
 
 - 500 
 474. 735 
 474. 735 
 252. 257. 
 260. 310 
 345. 743 
 
 - 273 
 
 - 479 
 
 - 427 
 729. 770 
 
 - 687 
 
 - 252 
 773. 827 
 
 - 245 
 
 - 456 
 126. 820 
 588. 838 
 
 - 645 
 430. 482. 
 
 90. 243 
 
 652. 658, 
 
 659 
 
 - 676 
 
 - 519 
 429. 433 
 
 26. 33 
 129. 344. 
 660. 841 
 
 - 658 
 
 - 136 
 
 Bonsor, Ex parte 
 Boot V. Wilson 
 Boroness, re 
 Bosvill V. Brander 
 
 Botham, Loveridge v. 
 
 V^ o *• I?- /:» *• Ml 1 
 
 Page 
 181. 581. 820 
 
 - 598 
 
 - 257 
 - 372. 376 
 
 885 
 
 Yarkerv. 162.328.849 
 
 Botterill, Ex parte 
 Bottomley, Ex parte 
 V. Brook 
 
 — — — — f. ±Jl Wl 
 
 Boulcot, Brand v 
 
 Bould, Ex parte - - ovv 
 
 Bourdillon v. Dalton - 320 
 Bourne, Ex parte 60. 110.808,809 
 
 Ex parte (2 G. & J.) 998 
 
 Brooks V. - - 885 
 
 184, 185 
 102. 852 
 
 - 712 
 330 
 509 
 
 - 320 
 
 Brooks V. 
 Sandom v. 
 Tudway v. 
 
 882 
 
 Auuwciy V. - 385. 579 
 
 Boussraaker, Ex parte 306. 308 
 Bouteflower v. Coates - 238 
 
 Bowdler, Ex parte - - 117 
 Bower, Ex parte - - 108 
 Bowes, Ex parte 27. 40. 80. 91. 
 591. 806. 809 
 Bowler, Ex parte - 834. 844 
 Bowles V. Langworthy 771, 772. 
 
 V. Perring - - 201 
 
 ■ V. Rogers - - 209 
 
 , Smith V. - - 461 
 
 Bowness, Ex parte 176. 290. 675 
 V. Huffhes - 559 
 
 - 482 
 269. 272 
 
 19. 706 
 
 - 684 
 
 Bozannet, Ex parte - 15. 185 
 T. . J5Q_ jg3^ jg-,^ 529. 
 
 534 
 iJracey v. Harris - 150. 529 
 
 Bradford v. Bloodworth 61. 689 
 Bradley, Ex parte - 7. 149. 514 
 
 • V. Clarke - - 675 
 
 V. Millar - 659. 723 
 
 Bradshaw, Ex parte - 803. 856 
 
 > , Richardson v. - 29 
 
 Brady, Skinner v. - - 571 
 Vincent v. - - 622 
 
 iJUWllCOO, JJ^A. IJclllC 
 
 Bowser v. Hughes 
 Bowsher, Davis v. 
 Boyd, Ex parte 
 Boyle, Ex parte 
 Boylston, Langston v. 
 Boyter, Dodsworth v, 
 Bozannet, Ex — '^~ 
 Bracey's case 
 
 Bracey
 
 INDEX OF THE CASES CITED. 
 
 XXV 
 
 Page 
 
 Bradyll V. Ball - - 266 
 
 , Duck V. - - 267 
 
 Braham, Brix v. - - 625 
 
 , Mead v. - - 188 
 
 Brailey, Elson v. - - 793 
 Braithwaite, Southcote v. - 602 
 
 Bramah, Wheeler v. - 396 
 
 Bramhall v. Cross - 751 
 
 Bramley v. Mundee - 42. 35 
 
 Brand v. Boulcot - - 330 
 
 Brander, Bosvill v. - 372. 376 
 
 Brandon v. Brandon - 215. 372 
 
 ■ V. Curling - - 265 
 
 , Millikin v. 
 
 V. Pate 
 
 V. Robinson 
 
 Brandram v. Wharton 
 
 Bromley u. Child 
 
 Brassey v. Dawson 
 Bravo, Shuttleworth v. 
 Bray, Ex parte 
 
 , Gibson v, 
 
 •^. u. Hine 
 
 Breeds, Walace v. 
 Brenchley, Ex parte 
 Brett u. Levett 
 Bricheno v. Thorp 
 Brickland v. Newsame 
 Brickwood v. Miller 401. 634. 760 
 Bridgen, Coppendale v. 694. 749. 
 
 780 
 Bridges, Ex parte 
 
 , Hogg u. 
 
 King u. 
 
 - 38 
 
 - 386 
 
 - 391 
 
 - 242 
 
 - 494 
 
 - 799 
 325. 339 
 
 - 414 
 - 872, 873 
 
 - 454 
 - - 672 
 96, 97. 762 
 
 - 1006 
 
 - 88 
 
 194. 
 
 Brigg, Halton v. 
 Bright, Ex parte - 
 Brightwen, Ex parte 
 Brind v. Bacon 
 Brine, Ex parte - 
 Bristow u. Eastman 
 Bristow's case - 
 Britain, Doe v. 
 Brix v. Braham - 
 Brockhurst, Ex parte 
 Brocklesby, Smith v. 
 Brockliss, Ex parte 
 Brocksopp, Ex parte 
 Brome u. Robinson 
 
 226 
 
 - 129 
 
 - 749 
 
 - 486 
 
 - 1002 
 
 - 202. 856 
 
 - 794 
 84. 103. 822 
 
 - - 325 
 
 - 359 
 
 - 362 
 
 - 625 
 
 - 842 
 
 - 876 
 210. 230 
 
 - 327 
 320. 394 
 
 Page 
 270. 283. 
 
 V. Goodere 9, 10. 140. 
 
 147. 193. 269, 270. 273. 546. 
 548, 549. 577. 
 
 V. King 
 
 , Primrose v. 
 
 • , Smith V. 
 
 Brooke, Bottomley v. 
 , Ex parte 
 V. Hewitt 
 
 Brookes, Ex parte 
 ■ V. Bourne 
 
 V. Lloyd 
 
 • V. Mason 
 
 - 768 
 
 - 326. 328 
 
 - 568. 570 
 
 - 712 
 
 - 256 
 
 - 578 
 - 42. 224 
 
 - 885 
 
 - 228. 285 
 V, ivicison - - 888 
 V. Rogers 250. 254. 291 
 
 , Sowerby v. 208. 676. 
 
 696 
 Broomhead, Smith v. - 135 
 
 Brough, Ridout v. - - 700 
 Brown, Ex parte (1 Atk.) - 655 
 
 , Ex parte (C. B. L.) 218. 
 
 257. 290 
 -, Ex parte (1 G. & J.) 248 
 -, Ex parte (1 Rose) 130. 
 
 565. 580. 809. 
 -, Ex parte (2 Rose) 206. 
 526. 528 
 
 Bromley's case - 528. 530, 531 
 
 -, Ex parte (1 Rose) 130. 
 565. 580. 809. 853 
 -, Ex parte (2 Rose) 206. 
 526. 528 
 -, Ex parte (2Swanst.) 818 
 -, Ex parte (2 Ves.) 124. 
 
 126.810 
 -, Ex parte (6 Ves.) 642 
 -, Ex parte (15 Ves.) 84. 
 310 
 
 -, Ex parte (15 
 
 310 
 -, Ex parte (IV.&B.) 663 
 -, AlsoD V. . - Q2B 
 
 -, Alsop V. 
 
 - V. Bellaris 
 
 - V. Bullen 
 -, Burn V. - - 480 
 
 - V. Chapman - 136 
 
 - V. Clark 373, 374. 378 
 -, Cuming V. - - 466 
 
 - V. Davies - 
 -, Eastwood V. 
 -, Evans v. 
 
 - V. Forrestall 
 -, Fowler V. 
 -, Gee V. 
 
 - V. Hankey 
 
 441 
 
 504. 724. 787 
 
 252 
 406, 407 
 551. 555 
 
 - 777 
 
 - 98 
 
 - 243 
 
 - 478
 
 XXVl 
 
 INDEX OF THE CASES CITED. 
 
 Brown v. Heathcote 418 
 
 V. Jones 
 ., Patten v. 
 
 , Phillips V 
 
 , Potter V. 
 
 .. , Tindal v. 
 
 m ■ V- Turner 
 
 . V. Watts 
 
 _ D. Williams 
 
 Browning, Hovill v. 
 
 690 
 
 321. 372. 375 
 
 30. 34'. 37. 767 
 
 - 279 
 
 - 605.618 
 
 - 243 
 
 - - 252 
 90.210.245 
 
 - 687 
 609, 610. 
 676. 684 
 
 . , Ludlow V. - - 438 
 
 Bruce, Ex parte 202. 204. 501. 
 
 550 
 
 Bruges, Smallcombe v. - 763 
 
 Bryan, Wildbore v. - - 884 
 
 Bryant, Ex parte (1 G. & J.) 585. 
 
 594. 850 
 
 . , Ex parte (1 Mad.) 160 
 
 . , Ex parte, (1 Rose) 5. 89. 
 
 808. 
 
 , Ex parte (2 Rose) 323. 
 
 813. 824. 827. 852. 857. 875. 
 
 V. Withers 96. 109. 190. 
 
 773 
 
 - 25 
 
 - 250, 251 
 
 - 404. 408 
 16. 433. 435 
 
 - 607 
 
 - 233 
 
 - 300 
 
 - 88 
 
 - 812 
 
 - 373 
 250. 257 
 
 - 109 
 268 
 872 
 286 
 
 64 
 566 
 390 
 
 Brydges, Hurd v. 
 Brymer, Ex parte 
 Bryson v. Wylie 
 Buchanan, Ex parte 
 
 . , Smith V. - 
 
 Buckington v. Shepton 
 Buckland, Ex parte 
 
 V. Newsame 
 
 Buckle, Ex parte 
 
 . , Harrison v. 
 
 Buckler v. Buttivant - 
 Buckley, Ex parte - 
 
 ' ■ V. Taylor - 
 
 Buckmaster, Lambert v. 
 Bucknall, Master v. - 
 
 V. Roiston 
 
 Buckner, Ex parte - 
 Bugby, Doe v. 
 Bullen, Ex parte 
 
 , Brown v. 
 
 127 
 
 325. 
 
 868 
 
 BuUer, Ex parte 
 Bullock, Ex parte 
 
 164 
 
 811. 
 504. 724. 787 
 125. 146. 810 
 - 22 
 
 Bullock, Rex v. 
 
 Bulmer, Ex parte 
 Bulteel, Ex parte - 
 Burchall, Ex pane - 
 Burdett v. Willett - 
 Burdon v. Dean - 
 Burfitt, Hicks, v. 
 Burgess, Ex parte 
 
 , in re 
 
 , Tappenden v 
 
 Page 
 
 95. 773. 775. 
 799. 817 
 305 
 
 - 203 
 
 - 24 
 
 - 427 
 
 - 373 
 
 - 69 
 773. 806 
 
 - 90 
 42. 67. 
 
 69,70 
 158 
 
 Burlton, Ex parte - 
 
 Burn, Ex parte 250. 252. 310. 
 421. 500. 642 
 
 , Bentall v. 
 
 V. Brown 
 
 Burnaby, Ex parte 
 Burnaby's case 
 Burnell, Walker v. 
 Burning, Bayley v. 
 Burr V. Freethy 
 Burra v. Clarke 
 Burrell, Ex parte 
 , Bamford v. 
 
 XI. Jones 
 
 Burridge v. Burgis 
 Burrow's case 
 Burrow, Ex parte 
 
 V. Jemino 
 
 , Walker v. 
 
 Burt, Ex parte 
 Burton, Ex parte 
 
 — Bank, Ex parte 
 
 — , Atkinson v. 
 
 — V. Chatterton 
 ■, Sampson v 
 
 1002 
 
 - 480 
 
 - 639 
 
 - 191. 807 
 
 - 425. 783 
 
 - 693 
 
 - 750 
 
 - 737 
 
 - 664 
 176, 177. 
 
 194. 596 
 
 - 902 
 
 - 243 
 
 - 119 
 
 - 228 
 
 - 605 
 
 - 866 
 
 - 792 
 17. 423. 605. 
 
 625 
 16. 435 
 
 - 900 
 
 Burwood, Ex parte 
 V. Felton 
 Kant 
 
 88S 
 
 - 699 
 
 - 1007 
 
 - 999 
 102. 173 
 
 V. Kant - 102. 173 
 
 Bury, Ex parte 344. 839, 840. 842 
 Buscall V. Hogg - - 26 
 Bush, Ex parte 
 Busk u. Davis 
 
 V. Walsh 
 
 Buss V. Gilbert 
 
 872 
 
 - 455 
 
 - 308 
 96. 197. 281
 
 INDEX OF THE CASES CITED. 
 
 XXVll 
 
 Butcher v. Easto 
 
 V. Churchill 
 
 Butler, Ex parte 
 
 ■ V. Carver 
 
 V. Cooke 
 
 , Davison v. 
 
 •, Emmet v. - 
 
 V. Richardson 
 
 , Singleton v. 
 
 -, Southey v. 
 
 V. Woolcot 
 
 Butlin, Ex parte 
 Butts, Ex parte 
 
 . V. Bilke 126. 
 
 Butterfill, Ex parte - 
 Buttivant, Butler v. - 
 Buxton, Ex parte 
 
 ■ V, Lawton 
 
 Byas, Ex parte 
 Bygrave, Bolland v. - 
 Byne, Ex parte 
 Byron, Ex parte 
 , Creswell v. 
 
 Page 
 67.94 
 
 - 272 
 226. 359 
 370 738 
 792. 795 
 751.753 
 
 - 796 
 
 - 438 
 
 - 444 
 
 - 678 
 
 - 462 
 
 - 658 
 568. 571 
 554. 613 
 194. 315 
 250. 257 
 
 - 335 
 
 - 828 
 321. 437 
 430. 482 
 161. 849 
 
 - 836 
 
 - 875 
 
 Cadell, Mace v. - - 427 
 
 , Viner v. 31. 38. 417- 438 
 
 Kennett 64 
 
 - ib. 
 
 - 546 
 
 - 389 
 
 - 623 
 608. 623 
 216. 222 
 
 Callowell V. Clutterbuck - 213 
 
 Cadogan Lord v 
 Cailland, Estwick v. 
 Calcot, Ex parte 
 Caicraft, Cooke v. 
 
 ■ V. Swan 
 
 Callen v. Meyrick 
 Calliford, Holland v. 
 
 Campion, Saville v. 
 
 V. Cotton 
 
 Candler v. Candler 
 
 Calvert, Clark v. 
 'Calze, Robson v. 
 Camden v. Anderson 
 Cameron v. Smith 
 — — — , Tovi^er v. 
 
 Campbell, Ex parte 
 
 , Armour v. 
 
 • , Jameson u. 
 
 , Joy V. 
 
 , Kitchens. 746. 732, 733 
 
 V. Walker - 334 
 
 . , Wright V. 463. 465 
 
 386. 555 
 565. 568 
 
 - 642 
 
 - 90 
 
 - 614 
 221. 789 
 
 - 606 
 
 - 238 
 
 - 436 
 
 Cane v. Coleman 
 Cann v. Reed 
 
 Cannon, Allen v. - - 
 Cantril v. Graham 
 Cape, Gravenor v. 
 Capell, Attorney General w 
 Caponhurst, Ex parte 
 Capot, Ex parte 
 Capper v. Desanges 
 Capron, Clarke v. 9. 11. 182. 196 
 
 501 
 Carling, Ex parte 
 Carlton v. Leighton 
 Carmichael, Wilkins v 
 
 Page 
 487 
 
 73 
 897 
 
 78 
 325 
 
 39 
 599 
 860 
 695 
 827 
 183 
 
 53 
 
 Carpenter, Harford v. 
 V. Marnell 
 
 Carr v. HinchlifF 
 
 V. Shaw 
 
 V. Taylor 
 
 Carrington, Ex parte 
 Carrick, Tait v. 
 Carrol, De Tastet v. 
 Carron, Field v. 
 Carstairs, Ex parte 
 
 . V. Bates 
 
 Stein 
 
 21, 
 
 Carter, Ex parte 
 
 V. Abbott - 
 V. Barclay 
 
 , Davenport v. 
 V. Dean 
 
 , March v. 
 
 , Park >v. 
 
 , Parker u. 
 
 - 1005 
 350. 364 
 
 484, 485, 
 486 
 
 - 202 
 
 - 743 
 
 - 718 
 
 - 863 
 373, 374. 714 
 
 818 
 751 
 446 
 
 - 862 
 
 - 288 
 - 433 
 
 - 303. 828 
 173. 510. 822. 
 828. 856 
 
 - 793 
 692. 737 
 
 - 684 
 
 Cartwright, Ex parte 
 Caruthers, Ex parte 
 Carver, Butler v. 
 Case, Falkner v. 
 
 , Hartley v. 
 
 Casey, Wilkins v. - 
 Cash V. Young 
 Caslon, Rolfe v. 
 Cassidy, Ex parte 
 
 34 
 
 881 
 
 872 
 
 705 
 
 92 
 
 88 
 
 738 
 
 421 
 
 - 243 
 
 677. 681 
 
 - 680. 686 
 
 - 257. 290 
 151. 523. 525 
 
 370. 
 405.
 
 XXVIU 
 
 INDEX OF THE CASES CITED. 
 
 Castell's case - 59.114.87 
 Castell, Ex parte 
 Castle, Ex parte 
 
 , Wright V. - - 
 
 Caswell, Ex parte 
 
 Cathcart v. Blackwood 359, 
 
 Cato, Easum v. - - 
 
 Caton, Ex parte - 190 
 
 Cator, Ex parte - 230 
 
 . -, Ramsbottom v. 
 
 Cave V. Aaron 
 
 , Cogan V. - 
 
 Cawkwell, Ex parte 69. 75. 
 Cawthorne, Ex parte 137. 
 
 Cay, Willets v. - - 
 
 Cazenove v. Prevost 
 Cecil V. Plaistow 
 Chace, Antram v. - - 
 Chadwick, Ex parte 
 Chambers, Haywood v. 
 
 , — , Marsh v. 
 
 Champernoun v. Scott 
 Champion, Ex parte 263. 
 Champney, Ex parte 
 Chandler, Ex parte 
 
 . . V. Gardiner 
 
 Chandless, Baikie v. 
 Chantler, Kensington v. 
 
 . , Newton v. 
 
 Chapman, Brown v. 
 
 ^ V. Clarke 
 
 — V. Derby 
 
 _ V. Gardner 
 
 , — , Hall V. 
 
 , Koopes V. 
 
 — • V. Lamphire 
 
 — . ■ — . V. Pickersgill 
 
 V. Turner 
 
 269 
 
 Chappell, Ex parte 
 Charles, Ex parte 
 Charlton v. King 
 Charman v. Charman 
 
 Charnock, Moss v. 
 Chase, Lewis v. 
 — — , Phillipson v. 
 
 96. 
 125. 
 419. 
 
 Page 
 870 
 
 1003 
 875 
 900 
 215 
 360. 
 594 
 707 
 
 ,306 
 
 ,324 
 631 
 900 
 886 
 154 
 
 205. 
 586 
 374 
 402 
 299 
 765 
 191 
 571 
 718 
 874 
 
 .549 
 838 
 653 
 388 
 901 
 441 
 67 
 136 
 873 
 700 
 793 
 752 
 801 
 25 
 136 
 487 
 998 
 275 
 614 
 
 353. 
 549 
 691 
 571 
 891 
 
 Chase v. Westmore 
 Chater, Ex parte 
 Chatterton, Burton v. 
 Chaytor, Gabboot v. 
 Cheap V. Pop ham 
 Cheesewright, Ex parte 
 Cheesman, Ex parte • 
 Chenoweth v. Haley 
 Cheyne, Slaughter v. 
 Child, in re 
 
 , Bromley v. 
 
 , Currie v. - 
 Chilton, Ford v. 
 -v. Whiffin 
 
 117 
 
 270. 
 
 255 
 
 Chions, Ex parte 
 Chippendale v. Tomlinson 
 
 Chitty, Cooper v. 
 Christie, Hussey v. - 
 — , Ex parte 
 
 , Maltby v. 
 
 Church, Bishop v. 
 Churchill, Ex parte 
 
 , Butcher V. 
 
 Clagett, George v. 
 Clanricardc; Ex parte 
 
 Clare, Ex parte 
 Clark, Bradley v. 
 
 V. Chapman 
 
 V. Donovan 
 
 V. Gorman 
 
 i , Greening v. 
 
 V. Hoppe 
 
 -i V. Ryall 
 
 V. Taylor 
 
 — , Tomlinson v. 
 
 746 
 
 504. 
 336. 
 
 428. 
 257. 
 
 882. 
 
 674. 
 
 -, Trinity House v 
 Clarke, Ex parte (3 Bro. 
 
 , Ex parte (1 C. B. 
 
 , Ex parte (4 Ves 
 
 V. Askew 95. 
 
 , Brown v. 373. 
 
 V. Capron 9. 11. 
 
 V. Calvert 
 V. Clarke - 
 ■y. Clement 
 
 ) - 
 L.) 
 
 •) 
 
 778, 
 374. 
 182. 
 
 386. 
 
 Page 
 
 478 
 163 
 883 
 876 
 863 
 119 
 478 
 49 
 611 
 301 
 283 
 796 
 626 
 291 
 427 
 551. 
 555 
 748 
 485 
 709 
 782 
 711 
 866 
 272 
 717 
 290. 
 500 
 451 
 675 
 873 
 888 
 900 
 413 
 620 
 748 
 881 
 891 
 486 
 244 
 845 
 273 
 779 
 378 
 196. 
 501 
 555 
 553 
 100
 
 TNDKX OF THE CASES CITED. 
 
 XXIX 
 
 Page 
 Clarke v. Cock - - 246 
 , Doe V. 125. 140. 356. 391 
 
 , Fj^ds V. 
 
 V. Hume 
 
 , Stafford v. 
 
 V. Wisdom 
 
 Clarkson v. Doodds 
 
 , Shee V. 
 
 Claridge, Hollis v. - 
 Claughton v. Leigh 
 Clavey v. Hayley 
 Claxton, Adams v. 
 Clay, Ex parte 
 Clayton v. Gosling 
 Cleasby, Morris v. 
 Clendon, Ambrose v. 
 
 60. 
 
 Clent, Nicholls v. 
 Cleeve u. Mills 
 Close V. Waterhouse 
 Clowes, Ex parte 
 Clunes, Ex parte 
 Clutterbuck, Callowell v 
 Coare v. Creed 
 Coates, Bouteflour v. 
 Cobb V. Symonds 
 
 , Woolley V. 
 
 Cobham, Ex parte 
 Cock, Clarke v. 
 
 V. Goodfellow 
 
 , Thackwaite v. 
 
 Cockayne, Ex parte 
 Cockerill v. Owston 
 Cocks, Ex parte 
 Cockshott, Ex parte 
 
 245 
 
 - - 394 
 58. 425. 790 
 
 - 25 
 
 - 760 
 
 - 715 
 
 - 873 
 
 - 538 
 
 - 62 
 
 - 211 
 
 - 648 
 
 - 1000 
 
 - - 715 
 89. 96. 
 
 770 
 
 - 477 
 
 - 400 
 
 - 483 
 640. 655 
 
 ' 398 
 213 
 
 - 201 
 
 - 238 
 28. 78. 93 
 
 - 601 
 
 - 647 
 
 - 246 
 71. 366 
 
 - 410 
 
 - 581 
 238. 601 
 263. 549 
 
 75. 290 
 
 V.Bennett 570. 571. 626 
 - 800 
 
 Coggan V 
 
 Codd, re 
 Coffin, Smith v. 
 Cane 
 Humphries v. 
 Cohen, Ex parte 
 
 V. Bell 
 
 V. Cunningham 
 
 V. Templar 
 
 Coker, Farewell v. 
 Coldwell V. Gregory 
 Cole V. Bennett 
 
 350. 367 
 
 - 886 
 
 - 778 
 
 - 534 
 
 - 862 
 100. 807 
 791. 868 
 
 - 873 
 
 - 418 
 
 - 876 
 ■ V. Davies 63, 64. 693. 746 
 
 Coleman, Cane v. 
 Coles, Ex parte 
 
 ' i V. Barrow 
 
 • V. Lovell 
 
 , Martini v. 
 
 V. Robins 
 
 V. Wright 
 
 Colkett V. Freeman 
 Collett V. De Golls 
 V. Wollaston 
 
 Page 
 
 - 78 
 789. 827. 837. 
 
 855 
 
 - 556 
 570. 628. 
 
 - 480 
 
 Collins V. Forbes 
 
 V. Nicholson 
 
 ■ V. Martin 
 
 - 678 
 
 - 681 
 41.57 
 
 - 208 
 
 - 728 
 
 - 426 
 
 - 888 
 429. 432, 433 
 
 - 263 
 
 - 790 
 
 - 622 
 
 - 374 
 - 22. 37 
 
 , Lowndes v. 
 
 Collinson v. Hillear 
 Colman, Nowers v. 
 Colmer v. Milner 
 Colt V. Nettervill 
 Coming, Ex parte 198. 202. 205 
 210. 332. 357 
 Comyn, Linging v. - 190 
 
 Congalton, Ex parte - 675 
 
 Conington, Iveson v. - 902 
 
 Constantia, re - - 450 
 
 Conway, Ex parte 116. 808. 898, 
 
 899 
 Cood V. Pollard 
 Cooke, Ex parte 128. 
 
 Butler V. 
 
 V. Calcraft 
 
 Haviland v. 
 Marsh 
 
 Coombe, Ex parte 
 Combes's case 
 Cooper V- Chitty 
 , Freen v. 
 
 V. Machin 
 
 V. Milburn 
 
 V. Pepys 
 
 , Read v. 
 
 , Rust V. 
 
 V. Wyatt 
 
 97. 
 240. 
 
 Cooper's case 
 Copeland v. Stein 480, 
 ■■ v. Stephens 
 
 Copeman t>. Gallant 
 
 - 488 
 217, 218 
 792. 795 
 
 - 389 
 
 - 619 
 
 - 827 
 202. 206 
 526. 528 
 746. 748 
 
 - 742 
 779. 788 
 
 - 884 
 498. 727 
 775. 842 
 
 64.442 
 
 - 391 
 
 - 316 
 681. 691 
 320. 393. 
 598, 599 
 
 - 436
 
 XXX 
 
 ]NDFA' OF THE CASES CITED. 
 
 Copland, Ex parte 
 
 Coppendale v. Bridgen 
 
 Corden, Philpott v. 
 Cornford, Lowndes v. 
 Corrie, Onslow v. 
 Corsbie v. Oliver - 
 , Vansandau v. 
 
 Corsen v. Dubois 
 Corser, Ex parte 
 Corry, Ex parte 
 Cory V. Gertchen 
 Coryton, Hoare v. - 
 Cossart, Ex parte 
 Cossens, Ex parte 150. 
 
 Cosser v. Gough 
 Cosh, Tucker v. 
 Cotesworth, Atkinson v. 
 Cottingham, Neale v. 
 Cotton, Campion v. - 
 
 V. Daintry - 
 
 ■ , Rex V. - 
 
 Cottrell, Ex parte 
 
 -i;. Hooke 
 
 Coulbourn, Ex parte 
 Coulson V. Hanimon 
 Councell, Thompson v. 
 Court, Martin v. 
 Courthope, Gibson v. 
 Cousins, Oilman v. - 
 Coutts, Gillespie v. 
 Coverley u. Morley 
 Cowan, Ex parte 7. 1 
 
 Coward, Dickenson v. 
 Cowell V. Simpson - 
 Cowie, Masterman v. 
 Cowley V. Dunlop 250. 
 
 , Litt V. 
 
 Cowper's case 
 Cox, Ex parte 
 
 , Biggs V. 
 
 V. Liotard 
 
 V. Morgan 
 
 , Porter v. 
 
 Page 
 
 - G48 
 80. 694. 
 
 749 
 
 - 609 
 555. 803 
 
 - 395 
 
 - 784 
 187. 255. 
 293. 597 
 
 - 869 
 
 - 300 
 342. 344 
 
 - 443 
 
 - 764 
 
 - 577 
 158. 517. 
 
 530 
 
 - 446 
 365. 375 
 
 486 
 
 - 399 
 
 - 73 
 
 - 32 
 
 - 313 
 - 9. 302 
 
 227. 230 
 
 - 589 
 
 - 238 
 
 - 544 
 
 - 290 
 
 - 395 
 
 - 760 
 
 - 420 
 609. 619 
 
 1. 13. 16. 
 330. 832 
 
 - 783 
 
 - 873 
 
 - 303 
 257, 258. 
 
 600 
 417.458 
 
 - 567 
 
 - 838 
 740. 753 
 
 - 264 
 
 - 677 
 
 - 752 
 
 Coxe V. Harden - 458 
 
 Coysegame, Ex parte 373. 
 Craddock, Ex parte 
 Craggs, Ex parte - 16 
 
 Craig, Kinloch v. 453. 460. 
 Craven, Austin v. - 
 
 V. Ryder - 459 
 
 Crawford, Ex parte 
 
 V. Attorney Ge- 
 
 I'age 
 
 468 
 
 731 
 
 35 
 
 .173 
 
 477 
 
 454 
 
 .467 
 
 69 
 
 neral 
 
 Wild 
 
 Crawley v. Impey 167, 168. 
 Crawshay, Bishop u. 475.680. 
 
 V. Collins 
 V. Eames 
 V. Homfray 
 V. Moule 
 
 325 
 
 Creed, Coare v. - - 
 
 Cremer, Wicket v. 
 Cresswell, Byron v. 
 Crew, Ex parte - 127. 
 
 , Selby V. - 
 
 Crickett, Harvey v. 
 Cridland, Ex parte 130. 516 
 Crinsoz, Ex parte - 183 
 Crisp, Ex parte 88. 123 
 
 V. Perritt 88. 123 
 
 V. Pratt 25. 365, 
 
 Crooke v. Edwards - 799. 
 Crookshank, Heathcote v. 
 
 V. Thompson 
 
 Crome, Mavor v. - 444. 
 Crosby v. Crouch 
 Cross, Dowton v. - 
 
 V. Fox 
 
 , Osbaldeston v. 
 
 , Bramhall v. - 
 
 , Smallcombe v. 
 
 Crossby, Ex parte - 
 Crosse v. Smith 
 Crossley, Ex parte 
 , Bleasby v. 
 
 V. Parker 
 
 Crowder, Ex parte 
 
 V. Shee 
 
 Crowe, Hawse v. 
 
 239. 310 
 90. 97. 
 769. 
 
 792 
 882 
 558. 
 860 
 
 .686 
 
 ,636 
 455 
 483 
 30 
 201 
 623 
 875 
 811 
 569 
 632 
 812 
 185 
 652 
 128 
 375 
 
 .801 
 297 
 290 
 
 .678 
 446 
 763 
 793 
 884 
 751 
 693 
 252 
 243 
 
 .500 
 
 762. 
 
 .997 
 881 
 821 
 888 
 
 1002
 
 INDEX OF THE CASES CITED. 
 
 XXXI 
 
 527. 531 
 
 512. 817 
 
 116. 147 
 
 14. 829. 834 
 
 - 542 
 490. 694 
 
 - 810 
 195 
 
 Jfage 
 Crowley, Harlow v. - 555. 803 
 Crowley's case 10. 151. 524. 526, 
 
 Crowther, Ex parte 
 Crudwell, Ex parte 
 Crump, Ex parte 
 
 ■ V. Taylor - 
 Crumpton, Rex v. 
 Crundwell, Ex parte 
 Cruttenden, Beardmore 
 
 Crutwell V. Lye 
 Culliford, Holland v. 
 Cumming v. Brown 
 
 ■ — V. Roebuck 
 
 Cundall, Ex parte 
 
 Cundy, Ex parte - 
 
 CunlifFe, Waring v. - - -z^v 
 
 Cunningham, Ex parte - 581 
 
 , Cohen v. 100. 807 
 
 , Murphy v. 893 
 
 Curling, Brandon v. 
 Currie, Ex parte 
 
 u. Child 
 
 , Smith V. 
 
 Curteis v. Willis - 
 Curtis, Ex parte 
 
 ■ V. Ashton 
 
 , Barclay v. 
 
 -, Field V. 
 
 — V. Perry 
 Cust, Ex parte 
 
 , Hope V. - - 644 
 
 Cuthbert, Bank of Scotland 
 
 V. - 348. 400. 604. 606 
 
 Cutten, Ex parte 130. 132. 554. 
 
 822 
 
 224. 291 ! 
 
 - 389 j 
 
 - 372! 
 
 - 466 
 386. 555 
 191. 590 , 
 
 - 31 
 270 
 581 
 
 Dally V. Smith 
 Dal ton, re 
 
 , Bourdillon v. 
 
 Danby, Elliott v. 
 Daniel, Ex parte 
 D'Aquila v. Lambert 
 Darby v. Baugham 
 
 V. Smith 
 
 Darley, Em den v. 
 
 , English V. 
 
 Darnton, Doe v. 
 Daubigny v. Duval 
 Daubuz, Pye v. 
 Davenport v. Carter 
 David V. Ellice 
 Davidson, Snook v. 
 Davie v. Mitford 
 Davies, Ex parte 
 
 265 
 577 
 
 - 796 
 
 - 58 
 
 - 57 
 257. 837. 899 
 
 - - 9 
 
 - 723 
 
 - 793 
 
 - 642 
 
 - 665 
 644 
 
 D 
 
 Dacie, Barker v. 
 Da Cossen, Judine v. 
 Daggett, Ex parte 
 Daintry, Cotton v. 
 Dale, Ex parte 
 . V. Birch 
 
 , Drayton v. 
 
 Dallas, Thornton v. 
 
 - 897 
 
 - 52 
 
 - 96 
 
 - 32 
 404. 417 
 
 - 388 
 551. 608 
 
 - 610 
 
 Page 
 
 - 277 
 
 - 537 
 
 - 320 
 349. 776 
 304. 306 
 450, 451 
 537. 539 
 380. 416 
 
 - 876 
 239. 243 
 
 - 709 
 48Q 
 
 - 357 
 
 - 684 
 
 - 1003 
 
 - 482 
 517, 518. 527 
 
 - 537 
 
 , iZiX pcirce - - ^av 
 
 , Bennett v. 222. 371. 377 
 , Brown v. - 252 
 
 , Brown v. - ^^^ 
 
 , Cole V. 63, 64. 693. 746 
 
 -, Selkrig v. - 348. 400 
 - - 567 
 
 Davis, Ex parte 
 
 V. Arnott 
 
 V. Bowsher 
 
 , Busk V. - - 
 
 , Drapers' Company v. 
 
 , Goose V. - 
 
 , Harmer v. 105. 765 
 
 — V. Living 
 
 — , Moggridge v 
 — , Ray V. 
 
 — V. Reynolds 
 --, Rex V. 
 — , Saxton V. 
 — , Shepley v. 
 
 V. Trotter 
 
 601 
 
 482 
 455 
 881 
 324 
 766. 
 801 
 425 
 197 
 731 
 
 - 460 
 280. 723 
 
 327. 560. 891 
 
 - 455 
 - 515.537 
 
 ■ V. irotier - t>li>. i)3/ 
 
 , Whitworth v. 369. 561. 728 
 
 ion. F.v nartp 9Aii. 8AA 
 
 Davison, Ex parte 
 — — — , Barney v. - 
 
 V. Butler 
 
 Dawe V. Holdsworth 
 Dawson, Ex parte - 
 — — — , Brassey v. 
 
 , Row V. 
 
 , V. Sampson 
 
 245. 844 
 
 - 74 
 751. 753 
 
 - 94 
 
 - 510 
 
 - 494 
 
 - 423 
 
 - 858
 
 xxxu 
 
 INDEX OF THE CASES CITED. 
 
 Dawson, Sellas v. 
 Day, Ex parte 
 
 , Wilson V. 
 
 Dayrell, Rooke v. 
 , Twort V. 
 
 Page 
 
 751, 752 
 
 221. 236. 495 
 
 - 65. 67 
 
 - 490 
 
 - 871 
 - 509. 515 
 
 - 789 
 288. 645 
 
 - 373 
 
 - 34 
 87. 212 
 
 760, 761 
 743 
 
 Dayrie, Ex parte 
 Deady v. Harrison 
 Deakin, Bedford v. 
 Dean, Burdon v. 
 
 , Carter v. 
 
 Dearlove, Parslow v. 
 
 Decharme v. Lane 
 
 De Cosson v. Vaughan 
 
 Deey, Ex parte 251. 273. 549 
 
 , Stracey v. - - 428 
 
 Deeze, Ex parte 83. 701. 703 
 Deffle V. Desanges - 50. 53 
 
 De Fries, Ex parte - 537 
 
 De Golls V. Ward - 95. 728 
 
 . , Collett V. - 208 
 
 De la Preuve v. Due de 
 
 Biron - - 863 
 
 De la Reise, Whittingham v. 607 
 Delauney v. Barker - 414 
 
 De Leira %). Edwards - 480 
 
 Dellow, Boden v. 163. 729. 790 
 Demainbray v. Metcalf 21 1 
 
 De Mattos, Worsley v. 65. 406 
 
 Demendez, Holyland v. 
 Dennett, Kirkpatrick v. 
 Denton v. Rodie 
 De Paiba, Vanderheydon v. 
 
 De Ponthieu, Jollet v. 
 Derby, Chapman v. 
 Desanges, Capper v. 
 
 . , Deffle u. 
 
 «_ — , Thomas v. 
 
 392 
 
 - 645 
 255 
 291 
 
 - 402 
 
 - 700 
 
 - 53 
 - 50. 53 
 682. 694. 
 
 748 
 Desanthus, Ex parte - 822 
 
 Desborough, Vandenanker v. 356 
 Descharmes, Ex parte 266 
 
 De Silva, Stonehouse u. 377-731 
 De Sylva, Smith u. - 635 
 
 De Tastet, Ex parte (1 Rose) 180. 
 241.316,317.343.647.652 
 
 ( 1 V. & B.) 182. 837 
 
 u. Carroll - 446 
 
 Page 
 De Tastet, Stockfleth u. - 788 
 
 1). Walker - 616 
 
 Devine, Ex parte - - 266 
 Devisne, Nightingale v. 734. 739 
 Devon x). Watts - 65- 72 
 Devonshire, Foxcroft u. 479, 480 
 Dew, Ex parte - • - 548 
 Dewdney, Ex parte (2 Rose) 500 
 , Ex parte (15 Ves.) 9. 
 
 41. 88. 98. 123. 125. 128. 140. 
 
 177. 242. 636. 807. 
 Dewey u. Bayntree 
 Dexham's case 
 Dibden, Doman u. 
 Dicas, Lodge u. 
 ■, Phillips w. 
 
 Dick V. Lumsden 
 Dickason, Bize u. 
 Dicken, Ex parte 
 Dickenson v. Coward 
 Dickson, Ex parte 
 — v. Evans 
 
 Diggell n. Wilkinson - oo;? 
 
 Diggens, Tamplin v. 675. 699 
 Dillon, in re - 11.265.857 
 - 624.626 
 
 - 64 
 
 - 91 
 
 - 264 
 
 - 645 
 568, 879. 
 
 - 468 
 
 - 714 
 
 - 216 
 
 - 783 
 
 - 185 
 
 - 719 
 889 
 
 675. 699 
 
 ■ V. Bailey 
 
 ■ V. Diiiiey 
 
 Dimsdale u. Eames 
 
 , Whitwell V. 
 
 — — — — , vviuiwen 
 Dinwiddle v. Bailey 
 Dister, Ex parte - - 828 
 Dixon, Ex parte 19.172, 173.542 
 V. Baldwin 448. 454 
 
 - 238 
 63. 772 
 
 - 721 
 828 
 
 «. Ewart 363.419.691 
 V. Hurst - - 886 
 ' u. Olmius - - 377 
 
 \u Plant - - 884 
 
 , Thornton v. - 641 
 
 Dobie, Hill u. - - 396 
 
 Dobree, Ex parte - 114.401 
 Dobson, Ex parte - 268. 283 
 
 v. Lockhart - 699 
 
 Doddington u. Hallett 487 
 
 Dodgson, Wood v. 297. 597.617. 
 
 668 
 Dodson, Ex parte 579. 591. 825 
 Dodsworth n. Anderson 39 
 
 .1^ , Boyterv. - 736 
 
 Doe V. Anderson - 69. 89
 
 INDEX OF THE CASES CITED. 
 
 XXXUI 
 
 Page 
 
 Doe u. Bevan - 124. 390 
 
 V.Britain - - 362 
 
 V. Bugby - - 390 
 
 . V. Clarke 125. 140. 356. 391 
 
 V. Darn ton - - 709 
 
 V. Lawrence - 94. 766 
 
 • V. Liston - 759. 780 
 
 V. Mitchell 350, 351. 741 
 
 U.Powell - - 1001 
 
 V. Smith - - 600 
 
 D' Oliviera, Ex parte - 298 
 
 Dollond, Lyster v. - 641 | 
 
 Doman v. Dibden - - 264 
 
 Dommett v. Bedford - 391 
 
 -, Binford v. 418. 645 
 
 Doncaster, Ex parte 843. 854 
 
 Donlevy, Ex parte 161. 537 
 
 Donnelly v. Dunn 602. 621 
 
 Donovan, Clark v. 882. 888 
 
 V. Duff - - 773 
 
 Doods, Clarkson v. 
 Dormett, Fashien v. 
 Dornford v, Dornford 
 Dorrien, Lucas v. 202. 204. 
 
 Drinkwater, Gulliver v. 
 Drummond, Evans v. 
 Drury v. Mann 
 Dubois, Ex parte 
 
 , Corsen v. 
 
 , Grove V. 
 
 V. Ludert 
 
 Dorvilliers, Ex parte 
 Doswell V. Impey 150, 
 
 Douthat, Ex parte 
 Doughty, Ex parte - 
 Dowden v. Fowle 105. 
 Down, Fowler v. 
 
 , Prickett v. - 
 
 Downes, Ex parte 
 
 V. Grayebrook 
 
 Downing, Townend v. 
 
 760 
 739 
 270 
 413. 
 453. 482 
 
 - 183 
 151. 166. 
 
 533 
 
 - 97 
 
 - 478 
 765. 801 
 552. 555 
 
 - 683 
 177. 199 
 
 - 200 
 187. 292. 
 
 792 
 
 - 1000 
 
 - 239 
 
 Ducane, Ex parte 
 Duck V. Braddyl 
 Duckworth, Ex parte 
 Dudley v. Vaughan 
 Dudman, Rex v. 
 Duff, Donovan v. 
 Dufrene, Ex parte 
 
 Dufresnoy, Goss v. 
 Dumas, Ex parte 
 Dumbell, Ex parte 
 Dunbar, Pistor v. 
 Duncomb v. Walter 
 Dunlop, Ex parte 
 , Cowley V. 
 
 56. 
 
 Page 
 
 - 274 
 
 - 645 
 313. 354 
 195. 224 
 
 - 869 
 
 - 714 
 
 - 646 
 
 - 200 
 
 - 267 
 
 - 813 
 59. 769 
 
 - 559 
 
 - 773 
 41. 79. 110. 
 
 114. 508. 804 
 
 - 635 
 
 - 427. 429 
 
 - 540. 1006 
 
 - 881 
 
 - 77 
 
 - 311.653 
 250. 257, 258. 
 
 600 
 
 - 332 
 - 602. 621 
 
 796 
 
 Downman, Ex parte 
 Downward, Ex parte 
 
 Dowson V. Levi - - 261 
 
 Dowton V. Cross - - 763 
 
 Drake v. Mayor of Exeter 367 
 
 Drapers' Company v. Davis 881 
 
 Drayton v. Dale - 551. 608 
 
 , Masters v. - 792 
 
 Drew V. Jefferies - - 627 
 
 Drinkwater v. Goodwin - 479 
 
 Dunman, Ex parte 
 
 Dunn, Donnelly v. 
 
 Dunning, Raven v. 
 
 Dunsany, Lord, Latouche v. 207 
 
 Dunsterville, Bell u. 
 
 Du Paz, Ex parte 
 
 Duperoy, Hoskins v. 
 
 Dupper, Read v. 
 
 Durent, Ex parte 
 
 Dutour, Ecollier v. 
 
 Dutton V. Agate 
 
 V. Morison 
 
 87. 
 
 318. 
 
 Duval, Daubigny v. 
 Dwyer, Jones v. 
 Dyche, Fletcher v. 
 Dyde, Williams v. 
 Dyer, Ex parte 
 
 V. Missing 
 
 Dykes, Parker v. 
 Dysart, Shall cross v. 
 Dyson, Ex parte 
 Dyster, Ex parte 
 
 324 
 191 
 212 
 874 
 344 
 
 - 886 
 
 - 887 
 63. 70. 633. 
 
 638 
 
 - 480 
 64. 412 
 
 - 710 
 
 - 624 
 
 - 246 
 
 - 155 
 321. 372 
 
 - 1003 
 
 - 578 
 306.418
 
 XXXIV 
 
 INDEX OF tHE CASES CITED. 
 
 E 
 
 Eade, Lingood v. 
 Eagle, Ex parte 
 Earner, Jameson v. 
 Eames, Crawshay v. 
 
 , Dimsdale t'. 
 
 Eardley, Ex parte 
 Earle, Ex parte 
 Earlier v. Languishe 
 Eason, Koster v. 
 East India Company, 
 parte 
 
 Page 
 
 - 51 
 
 - 853 
 56. 60. 769 
 
 - 4-55 
 
 - 238 
 
 - 155 
 239. 259 
 
 - 607 
 
 - 715 
 Ex 
 
 - 212,213 
 
 , Gordon 1). ^l^ 
 
 Eastabrooke v. Scott - 299 
 
 Easterby, Ouchterlony v. - 720 
 Eastman, Bristow v. - S'25 
 
 Easto, Butcher v. - 67. 94? 
 Eastwood V. Brown - 406, 407 
 Easum v. Cato - - 707 
 
 Eckhardt V. Wilson 70.631 
 Ecollier v. Dutour 
 Edge V. Worthington 
 Edmonson, Ex parte 
 
 — > , Menhara v. 
 
 . V. Parker 
 
 Smithey v. 
 
 747. 
 609. 
 134. 
 570. 
 
 Edmonstone v. Webb 
 Edmunds, Glennie v. 
 Edwards, Ex parte (1 Atk.) 
 (Buck.) 
 
 Page 
 Elgar, Ex parte - - 1000 
 
 Eliason, Parke v. - - 429 
 Elibank, Lord, v. Montolieu 373 
 
 , Murray u. 373, 374 
 
 Ellice, David v. - - 1003 
 
 Elliott, Atkinson v. 701.705.708 
 
 V. Danby 
 
 V. Hunt - 
 
 ., Laidler v. 
 
 Ellis, Ex parte 
 
 Hopkins v. 
 
 Longford v. 
 
 Shirley 
 
 Elizee, Stevens v. 
 Elmslie V. M'Aulay 
 Elsom V. Brailey 
 — , Robinson v. 
 
 744 
 886 
 203 
 822 
 809 
 619 
 136 
 595 
 716 
 709 
 328. 
 851. 854 
 
 (IC.B.L.) 139 
 
 . . (6 Ves.) 338. 
 
 345. 898 
 
 (10 Ves.) 829. 
 
 831 
 
 I'. Applebee - 357 
 
 , Crooke v. 799. 801 
 
 , De Leira v. - 480 
 
 V. Harben 64. 406, 407 
 
 , Rigby V. - 887 
 
 Egginton, Rex v. - 222. 426 
 Egglesham v. Haines - 799 
 
 Eicke, Ex parte - - 623 
 Eland v.Karr - - 712 
 
 Elder, Ex parte - - 216 
 
 Elford, re - - 998 
 
 Elton, Ex parte 
 
 , Mills V. 
 
 Elwall, Attorney-General v. 
 Emden v. Darley 
 Emery, Ex parte 
 
 Emly V. Lye 
 Emmett, Ex parte 
 
 V. Butler 
 
 Enderby, Ex parte 418. 583. 850 
 England, Quantock v. 98. 807 
 English, Ex parte 
 V. Darley 
 
 - 349. 776 
 
 450. 452, 453 
 
 - 901 
 
 121. 222. 224. 
 
 436. 853 
 
 41. 46 
 
 - 275, 276 
 
 - 777. 788 
 618.818.820 
 
 728 
 
 793 
 
 900 
 
 651 
 
 53 
 
 490 
 
 876 
 
 137.429.508. 
 
 803. 878 
 
 - 644 
 " 588. 592 
 
 - 796 
 
 124. 
 
 226. 229 
 239. 243 
 213. 699 
 
 - 877 
 429. 717 
 
 - 427 
 
 - 874 
 
 - 244 
 48 
 65 
 
 Entwistle, Hancock v. 
 Erie, Pyne v. 
 Escot V. Milward 
 Esdaile, Boddy v. - - 
 
 V. Oxenham 
 
 V. Sowerby 
 
 Essex, Sheriff of, PhiUips v. 
 
 Estwick V. Cailland 
 
 Evans, Ex parte 113.566.578 
 
 V. Bevis - - 882 
 
 V. Brown - 551. 555 
 
 , Dickson V. - - 719 
 
 V. Drummond - 645 
 
 V. Gill - - 620 
 
 V. Mann - 731. 781, 782 
 
 V. Marlett - - 463 
 
 , Powell V. - - 567
 
 INDEX OF THE CASES CITED. 
 
 XXXV 
 
 Evans v. Prosser 
 
 , Rex V. 
 
 V. Solly 
 
 Page 
 
 - 719 
 
 - 558 
 
 - 494 
 
 - 126 
 419. 691 
 
 - 792 
 
 Everett v. Backhouse 
 Ewart, Dixon v. 
 Evvens V. Gold 
 
 Ewer V. Preston - - 764 
 
 Exeter, Mayor of, Drake v. 367 
 
 Exleigh, Ex parte - - 301 
 
 Eyles, Griffin v. - - 874 
 
 Eyloe, Maylin v. - - 49 
 
 Eyre v. Birbeck - 42. 82 
 
 Faber, Barclay v. - - 540 
 Fair v. M'lver - 253. 712. 738 
 
 Fairbank, Jackson v. - 242 
 
 Fairbairn, Hay v. - 403. 419 
 
 Fairchild, Ex parte - 223, 224 
 
 Falconer v. Hanson - 789 
 
 Falkner v. Case - 405. 421 
 
 Farewell v. Coker - 873 
 
 Farlow, Ex parte - - 547 
 
 Farmer, Green v. - - 483 
 
 Farnell, Bennett v. - 244 
 
 Farr, Ex parte - - 145 
 
 Farran, Horncastle v. - 479 
 
 Fashion v. Dormett - 739 
 Featherstone v. Fenwick - 202 
 
 Fector, Ex parte - 13. 832 
 
 Feise v. Randall - - 571 
 
 V. Wray - - 460 
 
 Fell, Ex parte - 639. 663 
 
 Fellows, Ex parte - 117.810 
 
 , Staniforth u. - 711 
 
 Felton, Burwood v. - 999 
 
 Fenn, Franklin v. - - 727 
 
 , French v. - 701. 704 
 
 V. Harrison - 245. 250 
 
 , Winch q. t. v. - 303 
 
 Fenton v. Pearson - 461 
 
 , Trueman v. - 617. 625 
 
 Feranda, Ex parte - 87 
 
 Ferguson v. Mackreth - 900 
 
 Ferneley, Hewitt v. - 896 
 Fiddall, Hussey v. 727. 732, 733 
 
 Fidgeon v. Sharp - - 448 
 
 Field V. Bellamy 
 
 V. Carron 
 
 V. Curtis 
 
 , Northey v. 
 
 , Sake V. 
 
 , Smith V. 
 
 451. 
 
 Findon, Ex parte 
 Finchett v. How 102. 329 
 Finley, Flood v. 
 Fish, Sloper v, 
 Fisher, Ex parte 229. 
 
 , Ashdown v. 
 
 — , Fox V. 
 
 , Harman v. 
 
 — V. Miller 
 V. Touchett 
 
 Fisher's case (lOVes.) 
 Fiske, Guthrie v. 
 Flannagan, Watkins v. 
 Flarty v. Odium 
 Fleeming, Mortimer v. 
 Fleming, Mowbray v. 
 Fletcher, Ex parte 115. 
 
 V. Bathurst 
 V. Dyche 
 
 Hope V. 
 
 Orlebar v. 
 
 Pearson v. 
 V. Pogson 
 
 Flint, Ex parte 
 Key V. 
 
 386 
 
 Flintum, Ex parte 
 Flood u. Finlay 
 
 , Fryer v. 
 
 Flower, Arding v. 
 
 , Benson v. 
 
 V. Herbert 7. 91 
 
 Flyn, Ex parte 
 Foljarabe, White v. 
 Foord, Ex parte 
 Forbes, Collins v. 
 
 , Milward v. 
 
 , Odwin v. 
 
 V. Phipps 
 
 Chilton 
 
 Webb 
 
 b 2 
 
 Ford V 
 
 Page 
 - 42. 58 
 
 - 862 
 
 - 793 
 458, 459 
 
 - 472 
 
 - 473 
 
 - 637 
 
 - 290 
 . 888, 889 
 
 - 368 
 
 - 369 
 237. 897 
 
 - 623 
 
 - 439 
 70. 443 
 
 - 457 
 
 - 687 
 119. 124 
 
 93. 110 
 
 - 233 
 359, 360 
 
 - 421 
 
 - 895 
 136. 142. 
 
 805, 806 
 
 - 230 
 
 - 710 
 
 - 783 
 196. 333 
 618. 868 
 
 - 755 
 
 - 708 
 . 705. 708 
 
 - 648 
 
 - 368 
 365. 442 
 160. 539 
 
 - 387 
 . 793. 806 
 
 - 411 
 
 - 333 
 
 - 68 
 
 - 426 
 415. 789 
 400. 604 
 
 - 377 
 
 - 626 
 889. 902
 
 INDEX OF THE CASES CITED. 
 
 Forrester, Mann v. 
 , Minett v. 
 
 Page 
 483 
 715 
 
 777 
 120 
 
 Forrestall, Brown v. 
 
 Forshaw, Ex parte 
 
 Forster, Poynton v. 137. 775. 830 
 
 V. Surtees - 262. 284 
 
 Foster, Ex parte 54. 141. 806. 816 
 
 V. Allanson - 683 
 
 , Barrow v. - -55 
 
 V. Blakelock - 902 
 
 V. Jackson - 100 
 
 Foudrinier, HofFham v. - 287 
 Foulkes, Owen v. 334. 336. 866 
 Fowke V. Horabin 
 
 Fowle, Dowden v. 
 
 , Grey v. 
 
 . V. Kymer 
 
 , Rex V. 
 
 Fowler v. Brown 
 
 v. Down 
 
 V. Padget 
 
 Fowles, Ex parte 
 Fox, Cross V. 
 
 V. Fisher 
 
 V. Hanbury 
 
 Webb V. 
 
 - 900 
 105. 765. 801 
 
 - 305 
 
 - 455 
 
 - 495 
 
 - 98 
 555 
 769 
 
 - 820 
 
 - 793 
 
 - 439 
 631. 745 
 552. 555 
 
 552. 
 49. 
 
 Foxcroft V. Devonshire 479, 480 
 
 Francis, Bridger "u. 
 
 , Martin v. 
 
 V. Rucker 
 
 , Tinson v. 
 
 Francisco v. Gilniore 
 Franklin v. Fenn 
 V. Hosier 
 
 89 
 
 877 
 
 263 
 
 252 
 
 785 
 
 - 727 
 
 - 484 
 
 Franklyn, Ex parte - 550 
 Frederici, Stacey v. - 622 
 Freeland, Barnes v. - 472 
 Freeman, Ex parte (Buck.) 663 
 , Ex parte (1 C. B. L.) 
 
 671 
 
 . , Ex parte (1 Rose) 121, 
 
 122, 804. 830 
 
 . , Ex parte (3 Ves.) 658 
 
 , Ex parte (1 V. & B.) 
 
 114 
 
 , Colkett V. - 41. 57 
 
 V. Parsley - 373 
 
 , Thompson v. - 446 
 
 Freeman, "Willis v. 
 Frenie v. Wright - 
 Freen v. Cooper 
 Freethy, Burr v. 
 French v. Andrade 
 
 V. Barton 
 
 V. Fenn 
 
 423. 
 
 - 701. 
 Frere, Thomason v. 630, 631. 
 
 -, Yea V. 
 
 Freydeburgh's case 
 Frith, Ex parte 
 Williams v. 
 
 585 
 
 Frome, Moth v. 
 
 Frost, W^hitehouse v. 
 
 Fry, Ex parte - 182. 663. 
 
 , Baynes v. 
 
 V. Malcolm 
 
 , Wilkins v. - 334, 
 
 Fryer v. Flood - 365 
 
 Fuller, Randall v. 
 Fuller's case 
 Furlong, Granger v. 
 Furneaux, Ex parte 
 Furnell, Zagury v. 
 Furnivall, Ex parte 
 Furzo, Godfrey v. 
 Fydall, Ex parte - 577 
 
 Fyds V. Clarke 
 
 Page 
 679 
 333 
 
 742 
 750 
 710 
 752 
 704 
 711. 
 744 
 886 
 594 
 189 
 892 
 364 
 454 
 837 
 303 
 103 
 728 
 442 
 876 
 511 
 800 
 269 
 454 
 589 
 427 
 582 
 245 
 
 G 
 
 Gabboot v. Chaytor 
 Gadderer, Peers v. 
 Gainer, White v. 
 Gainsford, Smith v. 
 Gale, Ex parte 
 
 V. Halfknight 
 
 , Snaith v. 
 
 - 876 
 
 - 627 
 
 - 479 
 136. 890 
 123. 805 
 
 29. 37 
 
 - 255 
 
 Gallant, Copeman v. - 436 
 
 Galliers, Roe v. - - 390 
 
 Gallimore, Ex parte 29, 30. 34. 
 
 37. 804. 809 
 Galway, Lord, v. Mathew 643 
 Gamon, Sharp v. - - 728 
 Gandy, Bennett v. - 349. 776 
 Garbutt, Ex parte - 202. 857 
 Garcia, Benton v. - - 894 
 Gardiner, Ex parte - 512; 850
 
 INDEX OF THE CASES CITED. 
 
 XXXVll 
 
 Gardiner, Chandler v. - 388 
 Gardner, Ex parte (1 C. B.L.) 199 
 
 (1 Rose) 36. 
 
 591. 809 
 
 (11 Ves.) 221. 
 
 299 
 
 (15 Ves.) 287 
 
 (1 V.&B.) 129. 
 
 154. 577. 585. 592 
 
 -, Chapman v. - 793 
 
 V. Rowe - - 437 
 
 ■ V. Slack - - 766 
 
 V. Walker 
 
 375 
 
 Gardner's assignees v. Skinner 237 
 Gardom, Ex parte - 289. 643 
 Garforth, Nelson v. - 895 
 Garland, Ex parte - 225. 314 
 Garratt v. Cullum - - 427 
 , Hankey v. 9. 338. 638. 
 
 652 
 
 • V. Moule - - 53 
 
 Garrett v. Biddulph - 807 
 
 Garth v. Thomas - 358. 729 
 
 Gascoigne, Hodson v. - 358 
 
 , Hutchinson v, 23 
 
 Stead V. - 747, 748 
 
 Gascoigne's case - - 161 
 Gass, Ex parte - - 270 
 
 Gay lor. Ex parte - 134, 135 
 Gayner's case - - 65 
 
 Geary v. Beaumont - 226 
 
 Geddes, Ex parte 90. 127. 607 
 Gedge, Ex parte - - 83 
 Gee, Ex parte - - 294 
 
 V. Brown - - 243 
 
 Geering, W eatherall v. - 368 
 Geller, Ex parte - 211.653 
 
 Geordini, Willan v. - 616 
 
 George, Abraham v. - 763 
 
 , Anderson v. - 243 
 
 V. Clagett - 428. 717 
 
 , Rumsey v. - 99. Ill 
 
 Georges v. Georges - 874 
 
 Gerard v. Aylmer - 383. 385 
 Gertchen, Cory v. - - 443 
 Gervis v. Western Canal Company 
 
 775 
 Gibbon, Jones u. - - 423 
 
 Gibbons, Ex parte 
 Gibbs, Ex parte 
 Giblett, Walker v. 
 Gibson, Ex parte 
 
 Page 
 - 541 
 
 - 28. 33 
 
 - 601. 621 
 
 569. 580. 592. 
 
 595. 871 
 
 , in re 241. 346. 846. 856 
 
 V, Bray - - 414 
 
 V. Courthope - 395 
 
 V. Hudson's Bay Company 
 
 713 
 
 V. Hunter 
 
 , Minet v. 
 
 V. Thompson 
 
 Gifford, Ex parte 
 V. GifFord 
 
 288. 
 
 Gilbee, Ex parte 
 Giles V. Perkins 
 
 , Thompson v. 
 
 Gill, Evans v. 
 
 , Haselinton v. 
 
 V. Scrivens 
 
 W^oodmas 
 
 Gillam, Ex parte 
 Gillespie v. Coutts 
 , Mestaer v. 
 
 244 
 ib. 
 35 
 
 311 
 
 - 874 
 
 - 359 
 
 - 433. 482 
 431, 432, 433 
 
 - 620 
 - 64. 379 
 
 - 609. 619 
 
 - 794 
 
 - 130 
 
 - 420 
 
 - 691 
 
 - 384 
 237. 307 
 
 504 
 
 Gillet, Ex parte 
 
 Gillham v. Lock 
 
 Gillies V. Smith 
 
 Gillingham v. Laing - 29. 52 
 
 Gilman v. Cousins - - 760 
 
 , Hughes V. - 769 
 
 Gilmore, Francisco v. - 785 
 
 Gilpin, Ex parte - - 842 
 Girling, Wells v. - - 443 
 Gitley, Troughton v. - 424 
 
 Gitton, Ex parte - 840. 842 
 
 Gladstone, liirley v. - 486 
 
 V. Hadwen 415. 446 
 
 Glaister v. Hewer 96. 365. 375. 876 
 Glandfield, Ex parte 
 Glass, Young v. 
 Glassford v. Jeffery 
 Glassington v. Rawlins 
 Glendining, Ex parte 
 
 V. Robinson 
 
 Glennie v. Edmunds 
 
 , Mair v. 
 
 , Nicholl V. 
 
 b 3 
 
 836 
 
 - 188 
 
 - 561 
 81. 682 
 
 - 288 
 
 - 542 
 
 - 716 
 
 - 419 
 
 - 737
 
 xxxvm 
 
 INDEX OF THE CASES CITED. 
 
 Page 
 
 Glenny, Rex v. - - 490 
 
 Glossop, Ex parte - 104. 765 
 Glover, Ex parte - - 1^7 
 
 { 2 G. & J.) 1 04. 
 
 (1 Mont.) 234 
 
 Glyn, Poland v. - - 444 
 
 Goddard v. Vanderheyden 177. 
 
 291 
 Goddard's case 524. 526, 527 
 
 , Smith V. - - 746 
 
 Godden, Page v. - - 395 
 
 Godfrey V. Furzo . ■ - - 427 
 Goding V. London' Assurance 
 
 Company - - ^79 
 
 GofF, Partridge v. - - 441 
 
 Gold, Ewens v. - - 792 
 
 Goldie, Ex parte - - 536 
 
 — V. Gunston - - 553 
 
 Golding, Ballantine v. - 605 
 Goldsmith, Ex parte - 340 
 
 V. Bland - 243 
 
 Goldschmidt v. Lyon - 715 
 
 Golledge, Howell v. - 187 
 
 Gooch, Back v. - - 69 
 
 Goodair, Barker v. 630. 633. 638. 
 
 683 
 Goodall, Thorpe v. 361. 363 
 
 Goodchild, re - 342. 344 
 
 Goodenough, Lamb v. - 900 
 Goodere, Bromley v. 9. 10. 140. 
 
 147. 193. 269, 270.273. 546. 548, 
 549. 577 
 Goodfellow, Cock v. 71. 366 
 
 Goodhart v. Lowe - - 459 
 Gooding, Richardson v. 635 
 
 Goodman, Ex parte - 179 
 
 Goodtitle v. North - - 281 
 Goodwin, Ex parte 92. 851 
 
 , Drinkwater v. 479 
 
 V. Lightbody 370 
 
 Gooldie, re - - 154. 801 
 Goose V. Davis - - 374 
 
 Gordon, in re - - 118.214 
 
 pany 
 
 V. East India Com- 
 
 V. Secretan 
 V. Wilkinson 
 
 Gore, Ex parte 
 
 414 
 
 771 
 
 79 
 
 1006 
 
 Page 
 Goring, Ex parte - - 331 
 
 V. Warner - - 390 
 
 Gomnan, Clark v. - - 900 
 Gosling, Clayton u. -1000 
 
 Goss V. Dufresnoy - - 635 
 
 V. Neale - 64. 365 
 
 Richardson u. 452. 471. 483 
 
 Gough, re 
 
 Cosser v. 
 
 Gould, Ex parte 
 
 — , Radmore v. 
 
 , Weldon V. 
 
 1! 
 
 Goulding, Ex parte 
 Govett V. Armitage 
 Gower, Ex parte - 
 Gowland v. Warren 
 Gowthwaite, Ex parte 
 Grace v. Higham 
 Graff V. Greffulke - 
 Graham, Ex parte 
 
 — , in re 113 
 
 . V. Benton 
 
 Cantril v. 
 
 V. Grill 
 
 V. Robertson 
 
 V. Russell 
 
 — , Whitworth v. 
 
 398 
 446 
 333 
 
 - 760 
 
 - 484 
 
 - 643 
 
 - 560 
 
 - 328 
 
 - 614 
 82. 822 
 
 - 608 
 449. 472 
 
 534 
 139. 309. 341 
 
 - 275 
 
 - 599 
 
 - 619 
 744 
 717 
 787 
 
 Grainger, Ex parte 217. 405. 417 
 Granger v. Furlong - - 800 
 
 , Hudson V. - 362. 479 
 
 Grant, Ex parte 42. 554. 822 
 
 ■ , Inglis V. 39. 41. 63, 64. 70 
 
 V. Mills - 
 
 Gravenor v. Cape 
 
 Graves, Ex parte 
 Gray v. Fielder 
 V' Mendez 
 
 - 209. 487 
 
 - 860 
 322. 765. 823 
 
 - 740 
 
 - 742 
 
 Graybrooke, Downes v, - 200 
 Green, Ex parte, 332. 842. 851. 
 
 854. 856. 899 
 
 - 483 
 
 - 882 
 104. 779. 801 
 
 - 740 
 
 - 373. 379 
 
 - 490 
 78, 79. 82 
 
 - 374 
 
 V. F'armer 
 
 V. Hasseir 
 
 V. Jones 
 
 , Morgan v. 
 
 V. Otte - 
 
 , Rex V. 
 
 , Rose V. 
 
 Greenbank, Hearlc v
 
 INDEX OF THE CASES CITED. 
 
 XXXIX 
 
 Greening, Ex parte 16. 
 
 V. Clark 
 
 Greenwood, Ex parte 
 
 ., Harley v. 187 
 -, Wilson V. 
 
 Greenwoollers, Kennett 
 Gregg, Ex parte 
 , Sandersons. 81, 
 
 Gregory, Coldwell v. 
 
 V. Hurrill 
 
 Gregory's case 
 
 V. Merton 
 
 Gregson, Ex parte 
 
 , Blackburn v. 
 
 Grenway, Ex parte 90. 
 
 Grequier, Ex parte 315 
 Gresley, Batty e v. 155. 
 
 V. Price 
 
 Grey, Ex parte 
 
 V. Fowler 
 
 — — , Hopkins V. 
 
 V. Kentish 
 
 Gribble, Ex parte 
 Grier, Ex parte 
 Grierson, O'Brien v. 
 Griffin, Ex parte 
 V. Archer 
 
 V. Eyles 
 
 , Richardson v. 
 
 Griffith, Ex parte 146. 
 
 77. Squire 
 
 Grill, Ex parte 
 
 , Graham v> 
 
 Grimwood, Tattle v. 
 Groome, Ex parte, 140. 
 
 216. 222, 
 ' V. Potts 
 
 . ■ V. Symonds 
 
 Grosvenor, Ex parte 
 Grove, Ex parte 178. 
 
 V. Dubois 
 
 , Yeates v. 
 
 Gruggin v. White 
 
 Page 
 
 248. 321. 
 
 690 
 
 - 413 
 180. 211. 
 
 261 
 . 189. 558 
 
 - 391 
 V. - 794 
 
 546. 822 
 
 . 682. 686. 
 
 694 
 
 - 418 
 
 - 99 
 
 - 532 
 
 - 619 
 
 - 878 
 
 - 487 
 216. 246. 
 
 852 
 
 . 317. 540 
 
 162. 167. 
 
 530. 849 
 
 - 764 
 343. 509 
 
 - 305 
 
 - 60 
 
 - 372 
 
 - 642 
 
 - 546 
 
 - 176 
 
 - 1000 
 561. 728 
 
 - 874 
 
 - 739 
 870. 890 
 
 - 891 
 
 - 665 
 
 - 619 
 
 - 1003 
 213, 214. 
 , 589. 699 
 
 - 546 
 
 - 884 
 
 - 498 
 192. 266. 
 
 - 714 
 
 - 440 
 . 900 
 
 Page 
 Gulliver v. Drinkwater - 274 
 Gulstone, Ex parte 9. 47. 825. 852 
 Gunston, Goldie v. - - 553 
 Gunter, Macdonald v. - 900 
 Gurney, Hall v. - 419, 420 
 
 Rabitt -u. - - 793 
 
 Gur V. Rutton - - - 406 
 Gutheridge, Wilson v. - 882 
 Guthrie, Ex parte - 120 
 
 V. Fiske - 93. 110 
 
 Gwennap, Hurst v. 475. 686. 736 
 Gwynne, Ex parte 209. 479. 488 
 
 , Holroyd v. 52. 415 
 
 Gvde, Ex parte - - 209 
 
 H 
 
 Hadfield, Rushfield v. 
 Hadley, Ex parte 
 Hadwen, Gladstone v. 
 Hagger, Harmer v. 
 Hague, Ex parte 
 
 V. Rolleston 
 
 , Tanner v. 
 
 Haigh, Ex parte 198, 
 
 , Rawson v. 
 
 Haille v. Smith 
 Haines, Egglesham v. 
 Hale, Ex parte 
 
 , Shee V. 
 
 V. Small 
 
 , Stratton v. 
 
 Haley, Chenoweth v. 
 Halfknight, Gale v. 
 Halkett, Ex parte 
 Hall, Ex parte (1 Atk.) 
 
 (IG.&J. 
 
 (1 Rose) 
 
 248. 
 (9 Ves.) 
 
 V. Barnard 
 
 —^ V. Chapman 
 
 V. Gurney 
 
 , Heath v. 
 
 i, Naylor v. 
 
 , Nunny v. 
 
 V. Ody 
 
 , Vernon v. 
 
 , Wallcott V. 
 
 b 
 
 188 
 
 484 
 578. 582 
 415. 446 
 
 - 602 
 46. 806 
 
 - 630 
 
 - 100 
 . 202. 357 
 
 46. 778 
 
 - 457 
 
 - 799 
 250. 719 
 
 - 392 
 118.767 
 218. 222 
 
 - 49 
 
 - 29. 37 
 
 - 485 
 
 - 58 
 ) - 373 
 5. 15, 16. 
 ■ 566, 583 
 
 647. 652 
 
 - 735 
 
 - 752 
 419, 420 
 
 , 652. 800 
 
 - 32. 91 
 
 - 1002 
 
 - 876 
 
 - 675 
 
 - 225
 
 xl 
 
 INDEX OF THE CASES CITED. 
 
 Page 
 
 Hallett, Doddington v. - 487 
 Halliday, Ex parte 133. 146. 343 
 
 , Streatfield V. 128. 732. 
 
 745 
 Halsey, Audley v. 349. 490. 695 
 
 Austin V. 
 
 Haltkin, Steinmetz v. 
 Halton V. Brigg 
 Hamer, Ex parte 
 Hamersley v. Purling 
 
 V. Yea 
 
 Hammon, Coulson v. 
 Hammond, Ex parte 
 
 , V. Anderson 
 
 V. Atwood 
 
 I V. Hicks 
 
 , Kettle 17. 
 
 V. Myers 
 
 V. Toulmin 
 
 Hammonds v. Barclay 
 Hamper, Ex parte 
 Hampton, Anderson v. 
 • ' V. Hodges 
 
 Hanbury, Arbouin v. 
 
 , Fox V. 
 
 Hancock v. Entwistle 
 
 V. Haywood 
 
 373, 
 
 559, 
 
 487 
 374 
 486 
 319 
 677 
 303 
 238 
 200 
 455 
 560 
 
 - 48 
 
 - 70 
 
 - 788 
 
 - 284 
 479. 486 
 131.645 
 
 - 540 
 
 - 200 
 
 - 447 
 631. 745 
 213. 699 
 
 - 745 
 
 Hankey, Ex parte 263. 269. 549 
 
 ■ V. Brown - - 478 
 
 V. Garratt 9. 338. 638. 
 
 652 
 
 — V. Hammon - 225 
 
 V. Jones 20. 28. 38 
 
 V. Smith - 708 
 
 V. Towgood 31. 133. 
 
 829. 831 
 , Vernon v. 46. 202. 677. 
 
 718. 748 
 Hannay, Petrie v. 
 Hanson, Ex parte 
 
 , Falconer v. 
 
 — ■■ V. Harrison 
 
 - 305 
 9.722 
 
 - 789 
 
 - 25 
 
 - 333 
 
 - 454 
 320. 394 
 
 - 734 
 
 Harben, Edwards v. 64. 406, 407 
 Harbin, Ex parte 116. 146. 809 
 
 —, M'Donald v. 
 
 — y. Meyer 
 
 — V. Stevenson 
 — , Vernon v. 
 
 Page 
 
 Harcourt, Ex parte 86. 801. 808 
 Hardacre, Wallace v. 248. 423 
 Hardcastle, Ex parte - 129 
 
 Hardenbergh, Ex parte 185. 821. 
 
 853 
 Harding, Howell v. 
 Hardman, Ex parte 
 Hardwicke, Ex parte 
 
 Hardy, Ex parte 
 
 Roberts v 
 
 877 
 
 - 108 
 
 126. 8io: 
 
 830. 853 
 
 163. 868. 889. 
 
 899 
 
 92. Ill 
 
 - 891 
 
 - 199 
 
 - 589 
 190. 275 
 
 - 202 
 
 - 1001 
 
 - 671 
 447 
 
 187. 189. 
 
 558 
 
 555. 803 
 
 - 998 
 413. 454 
 
 70. 443 
 62 
 
 Hare, Spink v. 
 Harey, Ex parte 
 Harford, Ex parte 
 
 , Aylett V. 
 
 V. Carpenter 
 
 Hargraves, Ex parte 
 Hargreaves, Ex parte 
 
 .i , Thornton v. 
 
 Harley v. Greenwood 
 
 Harlow v. Crowley 
 Harman, Ex parte 
 
 V. Anderson 
 
 ■ V. Fisher 
 
 V. Spottiswood 
 
 Harmer v. Davis 105. 765, 766 
 
 801 
 
 - 602 
 55. 342. 639. 
 
 668 
 
 - 207 
 
 - 150 
 
 - 615 
 
 - 442 
 244 
 
 30 
 
 . 246 
 
 (Buck.) 147 
 
 — (lG.<feJ.)590 
 
 (2G.&J.) 104 
 
 (4 Mont.) 569 
 
 (2 Rose) 487 
 
 (3V.&B.) 123 
 
 - V. Buckle - 373 
 
 -, Deady v. - 789 
 
 -, Fenn v. 245. 250 
 
 V. Hagger 
 
 Harris, Ex parte 
 
 , Baker v. 
 
 , Bracey v. - 
 
 V. James - 
 
 V. Lunell 
 
 , Tatlock V. 
 
 Harrison, Ex parte (1 Bro.) 
 (2 Bro.)
 
 INDEX OF THE CASES CITED. 
 
 Xli 
 
 Harrison v. Ridley - 751 
 V. Walker - 321 
 
 - 881 
 - 330. 871 
 
 - 863 
 483. 701, 702 
 
 - 278 
 102. 174. 871 
 
 - 42 
 
 - 243 
 
 - 377 
 - 64. 407 
 
 - 483 
 Hartopp, Ex parte 12. 174. 329. 
 
 808. 871 
 
 . V. Jukes 102. 174. 857. 
 
 871 
 
 , Toussaint v. - 407 
 
 Hartshorn v. Slodden - 446 
 
 Hartsink, Bateson u. 618. 790. 868 
 
 Harvey, Ex parte - - 354 
 
 V. Crickett - 632 
 
 V. Liddiard 424. 677 
 
 . V. Morgan 386. 731, 732 
 
 Hart, Bennett v. 
 
 V. Biggs 
 
 , Minchin, xi. 
 
 , Rose V. 
 
 , Watts V. 
 
 v. White 
 
 Hartley, Allan v. 
 
 V. Case 
 
 r. Hurle 
 
 V. Smith 
 
 Spears u. 
 
 V. Ramsbottom 
 
 Harwood, Lomas v. 
 
 , Skip V. - 
 
 Haselinton v. Gill 
 Hassall v. Smithers 
 Hassell, Green, v. 
 Hassells v. Simpson 
 Hastings v. Wilson 
 Haswell V. Hunt 
 Hatfield, Ruck v. - 
 Hathaway, Ex parte 
 Havard, Ex parte 
 Haviland v. Cook - 
 Hawes V. Mott 
 V. Watson 
 
 59 
 
 - 675 
 
 - 124 
 64. 379 
 
 - 429 
 
 - 882 
 41.67 
 
 - 395 
 
 - 473 
 
 - 459 
 
 - 886 
 
 - 210 
 
 - 619 
 
 - 292 
 454. 466 
 
 - 436 
 - 53 
 
 Hawke, Langley v. 
 
 Hawkes v. Saunders 
 
 Hawkins, Ex parte 318. 515. 537 
 
 t;. Howard 791.869 
 
 V. Penfold 460. 676 
 
 V. Ramsbottom 203 
 
 Hay V. Fairburn 
 , Monkhouse v. 
 Sideaway v. 
 
 Valentine v. 
 
 Hawse v. Crowe 
 Hay, Ex parte 
 
 - 900 
 
 - 1002 
 658. 660 
 
 Page 
 
 403. 419 
 
 - 403 
 
 , oiaeaway v. - 
 
 Haydon, Ex parte - 
 Hayes, in re 
 Hayes's Case 
 Hayley, Clavey v. 
 Hayne, Fleming v. 
 Turner v. 
 
 607 
 647 
 122 
 107 
 62 
 626 
 
 , ^u...c. V. - - 832 
 
 Haynes, Ex parte 186. 543. 846. 
 
 879 
 (2G.«&J.) 999 
 
 - 243 
 
 - 455 
 477. 808 
 
 571 
 
 - 745 
 
 - 110 
 
 - 752 
 
 - 29 
 88. 760 
 
 - 374 
 
 - 202 
 207. 366 
 
 - 864 
 244. 582 
 652. 800 
 418. 690 
 
 , Walter v. - 
 
 Hayward, Slubey v. 
 Haywood, Ex parte 
 
 V. Chambers 
 
 , Hancock v. 
 
 Heale, Hill v. 
 Healey, Setcole v. 
 Heanney v. Birch 
 Heapy, Richmond v. 
 Hearle v. Greenbank 
 Hearn v. Mills 
 Hearne, Ex parte 
 •, Ogilvie V. 
 
 Heath, Ex parte 
 V. Hall 
 
 V. nail iGO. t)i>'Z. bUU 
 
 Heathcote, Brown v. 418. 690 
 
 V. Crookshanks 297 
 
 , Lloyd V. 55. 59. 93. 
 
 301 
 Heaton, Ex parte 
 Heck, Ex parte 
 Heming, Ex parte 
 Hemstead, Ex parte 
 Henderson, Ex parte 
 
 , Maanss v. 
 V. Samson 
 
 644. 657 
 
 - 21 
 
 - 852 
 
 - 194 
 121. 128, 
 
 584. 810 
 
 - 482 
 
 - 615 
 
 - 217 
 619, 620 
 
 - 303 
 
 - 844 
 
 '■ '■ Urn kjaiJ 
 
 Hennay, Ex parte 
 Henry v. Leigh 
 Henson, Ex parte 
 Hensor, Ex parte - - 844 
 Herbert, Ex parte 118. 158. 207. 
 320. 767 
 
 • (2G.&J.) 566 
 
 Flowers. 7-91.793.806 
 - 270 
 
 9 AJVITV^l* 
 
 Hercy, Ex parte
 
 xlii 
 
 INDEX OF THK CASES CITED. 
 
 Page 
 
 Heskam, Ex parte - 671 
 
 Heskuyson v. Woodbridge 255. 
 
 291 
 Hesse v. Stevenson 389. 552 
 
 Hewer, Glaister v. 96. 365. 375. 
 
 876 
 
 Hewitt, Ex parte 
 
 V. Bellott 
 
 , Brooke v. 
 
 V. Ferneley 
 
 V. Man tell 
 
 190 
 
 Heyden, Ex parte 
 Heydon v. Heydon 
 Heygate, Ex parte 
 Heys, Tarn v. 
 Heywood, Ex parte 
 Hiams, Ex parte 
 Hibbert, Rolleston v. 
 Hibbertson, Lingard v 
 Hicklin, Ex parte 
 Hicks u. Burfitt 
 
 , Hammond v» 
 
 Higden v. Williamson 
 Higginbottom, re 
 Higgins, Ex parte 
 Higginson, Ex parte 
 V. Kelly 
 
 84-6. 878 
 
 - 896 
 
 - 368 
 
 - 896 
 - 753, 75* 
 
 - 1007 
 
 - 634< 
 
 - 826 
 
 - 889 
 10. 843. 900 
 
 - 836 
 
 - 419 
 
 - 620 
 190, 191 
 
 - 69 
 
 - 48 
 
 - 364 
 
 - 1000 
 153. 344 
 
 - 509 
 
 - 218 
 
 - 608 
 20. 22 
 
 217 
 
 Higham, Grace v. 
 Highmore v. MoUoy 
 Higinbotham v. Holme - ^i t 
 Hill, Ex parte (C B. L.) 217. 652 
 
 (1 Madd.) - 484 
 
 (2 N. R.) - 649 
 
 (11 Ves.) 272. 275, 
 
 276. 596 
 
 . , Ashley v. 
 
 V. Dobie 
 
 V. Heale 
 
 a V. Humphreys 
 
 , Middleton v. 
 
 , Pry or v. 
 
 V. Shish 
 
 Hillear, CoUinson v. 
 Hilliard's case 
 Hillier, Ex parte 
 
 V. James 
 
 Hilton, Ex parte 
 HinchlifF, Carr v. 
 
 610 
 396 
 110 
 894 
 
 - 876 
 
 - 372 
 
 - 78 
 
 - 790 
 338. 500 
 179. 199 
 
 - 881 
 9. 17. 744 
 
 - 718 
 
 idle V. Shackleton 
 ...ne, Bray v. 
 Hinton, Ex parte 
 Hippins, Ex parte 
 Hirst, Ex parte - ooo 
 
 Hitchcock V. Sedgwick 39. 208 
 
 696 
 Hoare v. Coryton - 764 
 
 - V. Parker 
 — , Philpot V. 
 
 Hin 
 Hi 
 
 Page 
 
 - 886 
 
 872, 873 
 
 - 218 
 
 - 997 
 588. 839 
 
 Hobbes, Ex parte 
 Hobson, Beresford v 
 Hockley v. Bantock 
 
 V. Merry 
 
 — , Young v 
 
 205. 477. 873 
 
 - 390 
 
 - 133 
 
 7 jj w. 
 
 Hodges, Ex parte 
 
 255. 
 
 373 
 999 
 
 288 
 291 
 505 
 200 
 
 ■, Hampton v 
 
 , Westcott V. 293, 294. 616 
 
 Hodgkinson, Ex parte 111. 127. 
 
 314. 566. 609. 645. 658. 812 
 
 - — V. Travers - 131 
 
 - — V. Travers - 131 
 Hodgson, Ex parte 201. 220. 336. 
 
 648 
 
 (2G.&J.) 1006 
 
 , Alley V. - 445 
 
 , Alves V. - 210. 245 
 
 V. Bell - 256. 290 
 
 V. Gascoigne - 358 
 
 , Jamison v. - 445 
 
 , Kirkley v. - 403 
 
 Loy - - 459 
 
 . V. LiOy - - 459 
 , Pringle v. 373. 376, 377 
 
 . Riishwnrrh ii. - 9,9.0 
 
 — , Rushworth v. 
 
 Hodson, Smith v. 
 HofFham v. Foudrinier 
 Hoffman, Ex parte 
 Pitt 
 
 Hogg V. Bridges 
 
 , Buscall V. 
 
 — — V. Kirby 
 .- V. Mitchell 
 
 320 
 706. 733 
 
 - 287 
 
 - 263 
 406. 793 
 
 - 129 
 
 - 26 
 
 - 389 
 
 - 737 
 
 - 446 
 
 ■• V. ivincxieii 
 
 Holbird v. Anderson - 446 
 
 Holbrooke, Beddome u. 602. 621 
 
 Holden, Ex parte - 243. 493 
 
 Holding, Ex parte - 98 
 
 V. Impey - 1000 
 
 Holdsworth, Dawe v. - 94 
 
 Holland, Ex parte - 354
 
 INDEX OF THE CASES CITED. 
 
 xliii 
 
 Holland V. Calliford 216 
 
 V. Palmer 568, 
 
 Holliday, Ex parte 
 Hollingshead's case 
 Hollingworth, Tooke i; 
 Hollis V. Claridge 
 Holloway, M'Neilage v 
 Holme, Higinbotham v. 
 Holmer v. Viner 
 Holmes, Ex parte 
 
 V. Wainwright 
 
 ■ V. Walsh 
 
 ■ V. Winnington 
 
 Holroyd v. Gwynne 
 
 ' V. Whitehead 42 
 
 Hoist V. Pownall 
 Holt, Ex parte 
 Holyland v. De Mendez 
 Homfray, Crawshay v. 
 Hood, Ex parte 
 
 , Livesay v. 
 
 Hooke, Cottrell v. 
 Hooper, Ex parte 
 
 , Pearce v. 
 
 V. Ramsbottom 
 
 V. Smith 
 
 Till 
 
 Hope Byde, Round v. 
 
 • V. Cust 
 
 V. Fletcher 
 
 Page 
 222. 372 
 569. 571 
 11 
 150. 529 
 427. 429 
 
 - 873 
 
 - 99 
 
 - 217 
 
 - 299 
 
 - 547 
 135, 136 
 
 - 182 
 
 - 677 
 415 
 769 
 458 
 844 
 392 
 483 
 
 - 587 
 
 - 414 
 227. 230 
 202. 207 
 772. 776 
 205. 477 
 
 42. 71. 82 
 
 - 881 
 
 - 72 
 
 - 644 
 
 - 783 
 
 52. 
 
 48. 
 
 14. 
 
 • , Tyrrell v. 320, 321. 371 
 
 Hopkins, Ex parte - 816, 817 
 
 i V. Ellis - 41. 46 
 
 1— V. Grey - - 60 
 
 Hopkinson, Ex parte - 191 
 
 V. Smith - 896 
 
 Hopley, Ex parte 186. 589 
 
 Hoppe, Clark v. - - 620 
 
 Hopper, Reed v. - - 776 
 
 , Rex V. - - 695 
 
 ^ V. Richmond 110. 773 
 
 Horabin, Fowke v. - 900 
 
 Horn V. Baker - 403. 409 
 
 » , JellifF V. - - 689 
 
 Hornblower v. Proud 405. 430 
 
 Hornby, Ex parte 177. 489. 873 
 
 Horncastle v. Farran - 479 
 
 Home, Ex parte 
 
 203. 856 
 
 Horner, Rankin v. 
 Hornsby v. Lee 
 Horsefall, Knowles v. 
 Horseley, Ex parte 
 Horseman, Morgan u. 
 Horsey 's case 
 Horton v. Moggridge 
 Hosier, Franklin v. 
 Hoskins v. Duperoy 
 Hossack, Ex parte 
 Houghton, Ex parte 
 V. Mathews 
 
 608 
 
 87, 
 642 
 
 Houle V. Baxter 
 
 Houston, Ex parte 295. 
 
 Hovill V. Browning 609, 610. 
 
 ■ V. Lethwaite 362. 
 
 How, Finchett v. 102. 329. 
 
 Howard, Hawkins v, 
 V. Jemmett 
 
 791. 
 
 222. 
 
 438 
 
 V. Poole 
 
 V. Ramsbottom 
 
 , Skaife v. IIS, 779 
 
 Howarth, Kinder v. 
 Howe, Like v. - - 
 
 Howell, Ex parte 91. 198. 
 
 V. Golledge 
 
 V. Harding 
 
 , Meux V. - - 
 
 Howis V. Wiggins 250. 254 
 Hubbard, Ex parte 
 
 , Bloxam v. 345. 
 
 V. Johnstone 
 
 Hudson V. Granger - 362 
 Hudson's Bay Company, 
 Gibson V. - - - 
 Huggins, Bishop v. 
 Hughes, Ex parte 187. 331. 
 
 , Bowser v. 
 
 V. Gillman 
 
 V. Kearney 209. 
 
 , Mills V. 
 
 V. Morley - 593. 
 
 , Stoveld V. 
 
 Hull V. Pickersgill 
 
 Page 
 783 
 377 
 410 
 818 
 72 
 
 . 807 
 627 
 484 
 
 .212 
 179 
 
 .899 
 480 
 250 
 
 1000 
 
 676. 
 684 
 
 .679 
 
 888, 
 889 
 
 . 869 
 226. 
 
 . 861 
 608 
 761 
 
 .786 
 328 
 553 
 890 
 187 
 877 
 65 
 
 .291 
 653 
 743 
 691 
 
 .479 
 
 713 
 873 
 334, 
 335 
 559 
 769 
 487 
 26 
 617 
 467 
 55&
 
 xliv 
 
 INDEX OF THE CAbES GITEl). 
 
 Page 
 
 Hulse, Stracey v. - - 495 
 Hume, Clarke v. • - 394- 
 Humphrey, Ackerman v. 458 
 
 Humphreys, Hill v. - 888. 894 
 
 V. Partridge - 483 
 
 Humphries ti. Coggan - 778 
 Hunt, Ex parte - - 149 
 
 , Ellis V. - 450. 452, 453 
 
 , Haswell v. - - 473 
 
 V. Pasman - - 755 
 
 , Snelgrove v. - - 732 
 
 V. Ward - - 452 
 
 Hunter, Ex parte (1 Atk.) 665 
 
 (Buck.) 177.330. 
 
 341.669.873 
 
 (2 G. & J.) 296 
 
 (5 Mad.) 296. 
 
 310 
 (2 Rose) 340.635 
 
 (6 Ves.) 209, 210 
 451. 453 
 
 . - - 244 
 
 - 558 
 
 - 400 
 
 - ib. 
 - 404, 405 
 
 282. 613. 636. 
 
 V. Beale 
 , Gibson V. 
 , Moravia v 
 , Phillips V. 
 
 V. Potts 
 , Storer v. 
 , Wright V. 
 
 , Young V. 
 
 Hurd, Ex parte - 
 
 V. Bridges 
 
 Hurle, Hartley v. 
 Hurlock, Vincent v. 
 Hurrill, Gregory v. 
 Hurry v. Mangles 
 Hurst, Blissard v. 
 V. Dixon 
 
 14. 829. 
 
 667 
 652 
 834 
 
 25 
 377 
 246 
 
 99 
 455 
 243 
 886 
 
 . V. Gwennap 475. 686. 736 
 
 . v. Jennings - - 1004 
 
 V. Mead - - 278 
 
 Husband, Ex parte 168. 659. 662 
 
 Husbands, Ex parte (2 G . & J. ) 659. 
 
 661, 662 
 
 Hussey w. Christie - 485 
 
 . V. Fyddall 727. 732, 733 
 
 Hustler, Ex parte - - 247 
 Hutchinson v. Gascoigne - 23 
 Hyams, Ex parte - - 531 
 
 Hyde, Bilton v. 
 Hylliard, Ex parte 
 
 X 
 
 Imeson, Ex parte 
 
 Inipett, Allen v. 
 Impey, Crawley i. 
 
 Page 
 
 - 732 
 
 78. 87. 807. 
 
 851 
 
 - 245 
 
 - 380 
 167, 168. 558. 
 
 860 
 
 b60 
 ,Dodswellt;.150, 151. 166. 
 533 
 
 -, Holding V. 
 Ex parte 
 
 533 
 
 1000 
 
 434 
 
 456 
 
 Inglis, Ex parte 
 
 , Bohtlinck v. - 456 
 
 V. Grant 39. 41. 63, 64. 70 
 
 V. Macdougal - 289 
 
 - V. Usherwood 
 
 Ingham, Noke v. 
 Ingram, Joseph v. 
 Inman, Ex parte 
 Innes, Ex parte 
 Ireland, Aldridge v. 
 Ireson v. Pearman 
 Irvin, Jackson v. 
 
 Irvine, Ex parte 
 Irving, Ex parte 
 Isbester, Ex parte 
 Iveson V. Conington 
 
 Jacks, Ex parte 
 
 •, Wilks V. 
 
 69. 
 
 - 456 
 
 - 558 
 
 - 408 
 
 - 886 
 
 - 869 
 49, 50. 749 
 
 - 901 
 315. 408. 
 
 693. 764 
 811. 824 
 185. 543 
 246. 251 
 
 - 902 
 
 Jackson, Ex parte (1 Rose) 
 (2 Rose) 
 
 (1 Ves. J.) 
 
 (5 Ves.) 
 
 199. 
 
 (8 Ves.) 
 
 (15 Ves.) 
 
 , Akhurst v. 
 V. Fairbank 
 Foster v. - - 
 V. Irvin 69. 315. 408. 
 
 V, Lomas 
 
 32S 
 243 
 843 
 316. 
 765 
 656 
 18. 
 511 
 813. 
 831 
 539 
 388 
 242 
 100 
 693. 
 764 
 571
 
 INDEX OF THE CASES CITED. 
 
 XlV 
 
 Jackson, Rex v. 
 
 • , Rowe V. 
 
 , Stevens v. 
 
 , Wheelwright v. 
 
 and Wood, re 
 
 Page 
 
 - 534 
 
 - 374 
 80. 100 
 
 448 
 897 
 
 - 54 
 71. 73 
 
 - 427 
 
 - 376 
 148. 372 
 
 - 265 
 
 - 676 
 381 
 
 ciMu vvoou, re 
 
 Jackmor v. Nightingale 
 Jacob V. Shepherd 
 
 , Whitcomb v. 
 
 Jacobs, Worrall v. 
 
 Jacobson v. Williams 
 
 Jacques, Ex parte 
 
 Jager, Bolton v. 
 
 Jakeman, Shaw v. • - 381 
 
 James, Ex parte (1 Chitt. Rep.) 
 
 532 
 
 (1 P.Wms.) 139. 
 
 159. 530. 836 
 
 (5 Ves.) 230 
 
 (8 Ves.) 336. 501. 
 
 866 
 
 , Harris u. • - 615 
 
 , Hillier v. - - 881 
 
 V. Kynnier - 721 
 
 , Norden v. - 41. 63 
 
 , Reed v. 732, 733. 739! 
 
 773. 794 
 
 ■ , Rogers v. - - 99 
 
 • , Whitfield u. - 887 
 
 Jameson v. Campbell - 238 
 
 V. Earner 56- 60. 769 
 
 V. Hodgson - 445 
 
 , Smith V. 325. 345. 644. 
 
 Janson, Ex parte 
 
 , V. Wilson 
 
 Jaques v. Withy 
 Jarman v. Woolloton 
 Jarrett v. Leonard 
 Jarvis, Summersett v. 
 
 ■ V. Tayleur 
 
 Jeakill's case 
 Jeeks, Ex parte 
 JefFeries, Drew v. 
 JefFery, Glassford v. 
 
 V. M'Taggart 
 
 Jeflfries, Ex parte 
 JefFs V. Smith 
 V. Wood 
 
 656. 743 
 
 - 651 
 516. 786 
 100. 832 
 
 - 379 
 
 - 554 
 33. 553 
 
 - 352 
 
 - 157 
 
 - 784 
 
 - 627 
 
 - 561 
 
 - 730 
 
 - 215 
 
 - 55 
 
 - 711 
 
 Page 
 Jelfs V. Ballard - 609- 619 
 
 JellifFi;. Horn - - 689 
 
 Jellis V. Mountford - 92 
 
 Jemmett, Howard v. 222.226. 438. 
 
 861 
 Jemino, Burrows v. 
 Jenkins, Birkett v. 
 
 , Nixon V. 
 
 V. Reynolds 
 
 Jenks's case 
 Jennings, Ex parte 
 , Hurst V. 
 
 457 
 
 605 
 451 
 736 
 289 
 531 
 202 
 
 1004 
 319 
 
 .465 
 
 Jepson, Ex parte 
 Jewell, Vertue v. 
 Jewson V. Moulson 372. 374, 375 
 Johns, Ex parte - - 671 
 
 Squire v. - - 26 
 
 Johnson, Ex parte (1 Atk.) 578. 
 
 581 
 
 (1 G.& J.) 13. 
 
 102. 511.847 
 (14 Ves.) 540 
 
 - 483 
 - 322. 741 
 
 - 862 
 883. 891 
 
 - 236 
 
 , Bennett v. 
 
 , Kieran v. 
 
 , M'Connell v. 
 
 , Penson v. 
 
 , Shepherd v. 
 
 , Smithson v. - 291 
 
 V. Spiller - 283 
 
 Johnstone, Hubbard v. - 691 
 Jolley V. Wallis - - 63 
 
 Jollet V. De Ponthieu - 402 
 
 Jones, Ex parte (1 G. & J.) 573 
 
 (1 Mont.) 651 
 
 (1 Rose) 153 
 
 (8 Ves.) 812. 816 
 
 (11 Ves.) 805. 81 6 
 
 , (17 Ves.) 303 
 
 18 Ves.) 3 19. 652 
 
 - 568. 571 
 321. 372. 375 
 
 - 902 
 - 64. 412 
 
 - 423 
 
 - 779. 801 
 - 20. 28. 38 
 
 - 701 
 
 - 288 
 
 V. Barkley 
 
 , Brown v. 
 
 , Burrell v. 
 
 V. Dwyer 
 
 V. Gibbon 
 
 , Green v. 
 
 , Hankey v. 
 
 , Lanesborough v 
 
 , Lewis V.
 
 xlyi 
 
 INDEX OF THE CASES CITED. 
 
 Jones «. Lingard 
 
 — , Longdell V. 
 
 V. Llewellyn 
 
 , Paul V. 
 
 . V. Price 
 . - V. Roe 
 
 , Rex V. 
 
 • V. Smith 
 — — , Sowley V. 
 
 , Spence v. 
 
 ■ V. Thrustout 
 — — , Toleman v. 
 
 V. Tripp 
 
 , Tucker v. 
 
 Jordan v. Savage 
 Joseph, Ex parte 579. 
 
 V. Ingram 
 
 V. Orme 
 
 Jourdaine v. Lefevre 
 Jowett, Maude v. 
 Joy V. Campbell 
 Joyce, Willingham v. 
 Joynes, Ex parte 
 Judine v. Da Cossen 
 Jukes, Hartop v. 102. 
 Justin V. Balham 
 
 K 
 
 Kant, Burwood v. - 
 Karr, Eland v. 
 Kay V. Stead 
 Kaye v. Bolton 
 Kearney, Hughes v. 
 Keay v. Rigg 
 Keble v. Thompson 
 Keefe, Quin v. 
 Keeley, Winch v. 
 Kell, M'Master v. 
 Kellock V. Robinson 
 Kelly, Higginson v. 
 Kemp, Ex parte 
 
 V. Neville 
 
 - V. Potter 
 
 , Robson V. 60. 
 
 , Wilson V. 
 
 Kempland, Perkins v. 
 Kempshead, Ex parte 
 
 - 677 
 
 - 388 
 
 - 788 
 
 - 291 
 
 - 895 
 
 - 364 
 491. 494 
 
 - 211 
 
 - 622 
 
 - 508 
 
 - 862 
 
 - 1004 
 
 - 1006 
 
 - 53 
 372. 375 
 583. 821 
 
 - 408 
 
 - 250 
 482. 797 
 
 - 542 
 
 - 436 
 
 - 368 
 
 - 359 
 
 52 
 
 174. 857 
 
 - 485 
 
 102. 173 
 
 - 712 
 
 - 778 
 
 - 519 
 209. 487 
 
 - 742 
 224. 653 
 607. 618 
 437. 557 
 
 - 101 
 
 - 243 
 
 - 218 
 
 - 812 
 
 - 622 
 
 - 189 
 763. 798 
 617. 627 
 
 - 228 
 235. 280 
 
 Page 
 Kendale, Ex parte 331. 499. 589. 
 
 650 
 Kennedy, in re - - 360 
 
 Kennett, Ex parte 583. 617. 850 
 
 , Lord Cadogan v. 64 
 
 V. Greenwoollers 794 
 
 Kensington, Ex parte 206. 650 
 V. Chantler - 441 
 
 - 303 
 
 - 351 
 
 - 372 
 536, 537 
 
 - 875 
 
 Kent V. Lowen 
 
 D. of, Orlebar v. 
 
 Kentish, Grey v. 
 Kenyon v. Solomon 
 Kepple, Ward v. 
 Kerney, Ex parte 
 Kersley, Ex parte 
 Kettear v. Raynes 
 Kettle V. Hammond 
 Kettlewell, Ex parte 
 Key, Ex parte 
 V. Flint 
 
 160, 161. 
 318. 343. 
 
 Keys, Newington v. 
 Keyser v. Suse 
 Kidd V. Rawlinson 
 Kieran v. Johnson 
 Kilbie, Allen v. 
 Kilner, Ex parte 
 Kinder v. Howarth 
 V. Williams 144 
 
 542 
 345 
 291 
 70 
 225 
 231 
 386. 705. 708 
 
 - 292 
 
 - 453 
 - 64. 407 
 
 - 322. 741 
 
 - 638 
 
 - 69 
 
 - 328 
 161. 542. 
 
 751 
 
 King, Ex parte (C. B. L.) 239. 500 
 
 (Davies) 
 -- (7 East) 
 
 - (2 Ves.) 
 -- (7 Ves.) 
 
 (8 Ves.) 
 
 215 
 145. 574 
 
 - 813 
 160, 161. 
 
 542 
 
 - 213 
 
 V. Bridges 
 
 , Bromley v. 
 
 , Charlton v. 
 
 V. Leith 
 
 - — V. Martin 
 
 , Moody V. 
 
 Kingdom, Ex parte 
 Kinloch v. Craig 
 
 -(11 Ves.) 10. 565. 
 
 514>. 577. 581 
 
 - (15 Ves.) 145. 574 
 
 - (17 Ves.) 551.666 
 ■ 749 
 
 - 768 
 
 - 614 
 682. 733 
 
 - 562. 728 
 
 - 796 
 840. 891 
 
 453. 460. 477
 
 INDEX OF THE CASES CITED. 
 
 xlvii 
 
 Kinloch, Taylor v. 
 Kiniiear r. Tarrant 
 Kinnersley v. Orpe 
 Kinsman, Saddington v. 
 Kirby, Ex parte 
 
 , Hogg V. 
 
 Kirk, Ex parte 12. 353. 
 
 V, Paulin 
 
 Kirkley v. Hodgson 
 Kirkman, Richardson v. 
 V. Shawcross 
 
 Kirkpatrick v. Dennett 
 
 Kirney v. Smith 
 
 Kitchen v. Bartsch 
 
 V, Campbell 732, 733. 746 
 
 Page 
 762, 763 
 753. 754 
 
 - 776 
 
 - 373 
 
 - 663 
 
 - 389 
 806, 807 
 
 - 371 
 
 - 403 
 
 - 248 
 
 - 484 
 11. 555 
 
 - 25 
 
 - 556 
 
 Kittridge, Alldritt v. 
 Knight, Ex parte 
 — — — , Addis V. 
 
 V. M'Lean 
 
 , Simmonds v. 
 
 Waring v. 
 
 Knott, Ex parte 
 Knovvell, Ex parte 
 Knowles v. Horsfall 
 Kock, Ex parte 
 Koopes V. Chapman 
 Koster v. Eason 
 Kretchman v. Beyer 
 
 , Winter v. 
 
 Kruger v. Wilcox 
 Kymer, Fowler v. 
 
 , Shipley v. 
 
 Kynnier, James v. 
 
 - 1001 
 811.834 
 
 - 709 
 
 - 269 
 
 - 759 
 
 - 400 
 207. 659 
 
 - 190 
 
 - 410 
 
 - 263 
 
 - 801 
 
 - 715 
 753, 754 
 
 - 732 
 477. 479 
 
 - 4^55 
 ' 480 
 
 - 721 
 
 Lacey, Ex parte - 334. 336 
 
 Ladbroke, Ex parte - 659 
 
 LafFert, Ex parte - 585. 594 
 
 Laforest, Ex parte - 660 
 
 , Sanderson v. - 763 
 
 Laidler v. Elliott - - 901 
 
 Laing, Ex parte - - 565 
 
 , Barclay v. - 791. 868 
 
 , Gillingham v. - 29. 52. 
 
 , Walker v. - 734, 735 
 
 Lamb V. Goodenough - 900 
 Lambert, in re - 112.253 
 ■— • V. Buckmaster 872 
 
 Page 
 Lambert, D'Aquila v. 450, 451 
 Lamley, Arden v. - - 900 
 Lamphire, Chapman v. - 25 
 Lancaster Amicable Society, 
 
 Ex parte - - - 300 
 Lander, Lloyd v. - 561. 728 
 Lane, Ex parte 135. 139. 338 
 
 , Decharme v. - 760, 761 
 
 Lanesborough v. Jones - 701 
 
 , Ringstead v. 21 
 
 Lanfear, Ex parte 19. 545. 551. 
 
 636 
 Langden v. Walker - 795 
 
 Langford v. Nott - 883 
 
 Langhorn's case - - 520 
 
 Langley v. Hawke - 436 
 
 V. Stapleton - 871 
 
 Langston, Ex parte - 207 
 
 V. Boylston - 684 
 
 Languishe, Earlier v. - 607 
 
 Langworthy, Bowles v. 771, 772 
 Lann v. Church - 872. 875 
 
 Lant, Rowe v. - - 759 
 
 L'Apostre v. Le Plaistrier 427 
 Larkin, Ryall v. - - 700 
 
 La Riviere, Stokes v. - 452 
 
 Laroche v. Wakeman - 555 
 
 V. Wilkinson - 551 
 
 Latimer v. Batson - 408 
 
 Latouche v. Lord Dunsany 207 
 Lauderdale v. Duke of Montrose 
 
 360 
 Laughton, Ross v. - 869 
 
 Lavender, Ex parte 132. 510. 816 
 Lavie v. Phillips - 21. 379 
 
 Law, Ex parte - - 813 
 
 Lawes, Wright v. - 453 
 
 Lawrence, Doe v. - 94 
 
 , Whichcote v. - 334 
 
 Lawton, Buxton v. - 828 
 
 V. Robinson - 779 
 
 Laycock, Ex parte - 319 
 
 Lay ton, Ex parte 120. 126. 128. 
 810. 830. 853 
 Lazarus v. Waithman - 58 
 
 Lea, Plummer v. 387. 754, 755 
 
 , Soulsby V. . - 780 
 
 Leaverland, Ex parte - 831
 
 xlviii 
 
 INDEX OF THE CASES CITED. 
 
 Page 
 Le Chevalier v. Lynch 401. 742 
 Le Compte, Ex parte - 228 
 
 Lechmere v. Thoroughgood 490. 
 
 746 
 Ledbury v. Smith 
 Ledyard, Ex parte 
 Lee, Ex parte 87. 
 
 . , Hornsby v. 
 
 : V. Lopes 
 
 V. Prieaux 
 
 , Rex V. 
 
 , Schooling v. 
 
 Leech, Ex parte 
 
 , Harper v. 
 
 Leeds Bank, Ex parte 
 
 V. Wright 
 
 Leeke, Ex parte 
 Leers, Ex parte 
 Lees, Ex parte 127. 810, 811, 812 
 Lefebvre, Ex parte - 241 
 
 Lefevre, Jourdaine v. 482. 797 
 Legge, Wilson v. - - 791 
 Leicester, Ex parte 112. 126. 830. 
 
 853 
 
 . -, Woolcot V. 
 
 Leigh, Ex parte 221. 
 837 
 
 - 749 
 
 - 34 
 119. 257.262. 
 265. 657. 872 
 
 - 377 
 
 - 124. 266 
 
 - 377 
 
 - 479, 480 
 
 - 56. Ill 
 
 - 1006 
 
 - 891 
 
 - 431 
 
 - 452 
 
 - 224 
 
 - 240 
 
 602. 622 
 538. 541. 
 . 843. 855 
 
 - 538 
 619, 620 
 
 - 615 
 92. 682. 694 
 
 350. 364 
 236. 283 
 682. 733 
 342. 344 
 Le Mesurier, Ex parte - 401 
 Lemon, Oxenham v. - 888 
 
 Lempriere v. Pasley 419. 488. 690 
 Leonard v. Baker - 64. 408 
 
 , Claughton v. 
 
 , Henry v. 
 
 _ V. Monteiro 
 
 . , Sadler v. 
 
 Leighton, Carleton v. 
 Leitch, Ex parte 
 Leith, King v. 
 Leman, Ex parte 
 
 — , Jarret v. 
 
 Le Plaistrier, L'Apostre v. 
 Lethbridge, Luxmore v. 
 Lethwaite, Hovill v. 362. 
 Levett, Ex parte 
 
 , Brett v. - 96.97. 
 
 Levi, Dowson v. • - 
 
 554 
 427 
 882 
 679 
 155 
 762 
 621 
 
 Levy, Ex parte 
 
 , Norris v. 
 
 Lewes v. Morgan 
 Lewis, in re 
 
 V. Chase 
 
 V. Jones 
 
 V. Owen 
 
 V. Piercy 
 
 Ramsbottom 
 
 ', Vare v. 
 
 Lewthwaite, Ex parte 
 Liddell, Ex parte 
 , Robertson v. 
 
 Lidderdale, Stone v. 
 Liddiard, Harvey v. 
 Lightbody, Goodwin v. 
 Like V. Howe - 
 Lilly V. Osborne 
 Lindsay, Ex parte 
 Lingard v. Bromley - 
 
 V. Hibbertson 
 
 , Jones V. 
 
 V. Messiter 
 
 V. Webb 
 
 Lingham v. Biggs 
 Linging v. Comyn 
 Lingood, Ex parte 10. 91 
 
 V. Eade 
 
 Linthwaite, Ex parte 
 Linton v. Bartlett 
 Linwood, Ex parte 
 Liotard, Cox v. 
 Liscarry, Walker v. 
 List, Ex parte 
 Lister V. Lister 
 
 V. Mundell 
 
 Listen, Doe v. 
 Litchfield, re 
 , Earl of, re 
 
 Litt V. Cowley 
 Little, Moyses v. 
 Livesay v. Hood 
 Living, Davis v. 
 Llewellyn, Ex parte 222. 224. 436, 
 
 437 
 
 Page 
 54. 821. 853 
 
 - 513 
 
 - 881 
 142. 335. 819 
 
 - 571 
 
 - 288 
 
 - 606 
 - 274. 593 
 
 V. 45. 631. 
 745. 769 
 
 - 244 
 181. 1006 
 
 661, 662 
 48. 51. 60 
 
 - 360 
 424. 677 
 
 - 370 
 
 - 553 
 365. 375 
 
 - 183 
 
 - 329 
 . 620 
 
 - 677 
 404. 408 
 
 - 751 
 
 - 408 
 
 - 190 
 . 148. 806. 
 
 826. 836 
 
 - 51 
 167. 859 
 
 65. 72. 443 
 336. 866 
 
 - 264 
 230. 608 
 
 - 160 
 
 - 334 
 
 - 623 
 759. 780 
 
 - 315 
 7. 326 
 
 ■ 417. 458 
 
 - 367 
 
 - 414 
 
 - 425
 
 INDEX or Tin: CASES CITED. 
 
 xhx 
 
 Page 
 
 Llewellyn, Jones v. - 788 
 
 Llovd, Ex parte (1 G. & J.) '206 
 
 (1 Jac.) - 1000 I 
 
 (1 Ptose) - 255 I 
 
 — , Brookes v. 
 — V. Heathcote 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 Lander 
 Maund 
 Stretton 
 Williams 
 Loaring, Ex parte 
 Lobb, Ex parte 
 Lobbon, Ex parte 
 Lockhart, Dobson xk 
 Lock V. Bennett 
 
 V. Bromley 
 
 , Gillham v. 
 
 Lockyer v. Savage 
 Lodge, Ex parte 
 
 V. Dicas 
 
 Lomas, Harwood i'. 
 
 Jackson v. 
 
 London Assurance 
 pany, Nelson v. 
 ■, Goding V. 
 
 561. 
 
 105. 
 
 209. 
 
 228. 285 
 55. 59. 93. 
 301 
 
 r28 
 
 882 
 801 
 374 
 4.87 
 
 - 663 
 
 - 187. 293 
 
 - 699 
 
 - 700 
 
 - 856 
 
 - 237. 307 
 
 - 218. 372 
 
 - 665 
 
 - 64-5 
 
 - 675 
 
 - 571 
 Com- 
 
 - 405. 417 
 
 - 479 
 London, Bishop of, Barker v. 886 
 Long, Ex parte 502, 503. 590 
 Longdill V. Jones - 388 
 
 Longford v. Ellis - 275, 276 
 Longman, Ex parte 331. 850.880 
 
 V. Tripp 389. 405. 416 
 
 Longmead v. Beard - 615 
 
 LongstafFe v. Xaylor - 881 
 
 Lopes, Lee v. ' - 124. 266 
 Lord, Ex parte - 185, 579. 580 
 Lovelace's, Lord, case - 324 
 Lovell, Coles v. - 570. 628 
 
 Loveridge v. Botham - 885 
 
 Low V. Skinner - -65 
 
 Lowe, Ex parte - 853. 898 
 
 , Goodhart v. - 459 
 
 V. Waller - - 302 
 
 Lowen, Kent v. - - 303 
 Lowfield V. Bencroft - 774 
 Lowndes v. Collins - 263 
 V. Cornford 555. 803 
 
 Lowndes v. Taylor 
 Loxley, Ex parte 
 Loy, Hodgson v. 
 Lucas V. Dorrien 202. 
 
 V. March 
 
 Ludert, Dubois v. 
 Ludford v. Barber 
 Ludlow V. Browning 
 Lugg, Willis V. 
 Luke, Ex parte 
 Lumb V. Milnes 
 Lumsden, Dick v. 
 Lund, Ex parte 
 Lunell, Harris v. 
 Lushbrooke, Ex parte 
 Luxmore v. Lethbridge 
 Lye, Crutwell v. 
 — --, Emly V. 
 Lyndsay v. Weightman 
 Lynch, Le Chevalier v. 
 Lyon, Goldschmidt v. 
 
 V. Weldon 
 
 Lyons, Ex parte 
 Lyster v. Dolland 
 , Pickstock V. - 
 
 Page 
 
 - 561 
 
 274. 505 
 
 - 45f) 
 204. 413. 
 453. 482 
 
 - 719 
 
 - 646 
 284. 598 
 
 - 438 
 
 - 357 
 123. 823 
 373. 378 
 
 - 468 
 
 - 153 
 
 - 442 
 575 
 
 - 882 
 
 - 389 
 
 - 644 
 
 - 626 
 742 
 715 
 425 
 360 
 641 
 36.5 
 
 401 
 
 64. 
 
 M 
 Maanss v. Henderson 
 Macarty v. Barrow 
 Macauley v. Philips 
 Macbar, Stapleton v. 
 Macdonald v. Gunter 
 
 V. Macdonald 
 
 , Ramsav v. 
 
 Macdonnell, Ex pane 
 
 , Robinson v, 
 
 Macdougal, Liglis v. 
 
 V. Paton 
 
 Mace, Ex parte 
 
 V. Cadell 
 
 Machell, Ex parte 
 Machin, Cooper v. 97. 
 Mackenzie, Rogers v. 
 Mackerness, Ex parte 
 Macklin, Ex parte 
 Mackreth, Ferguson v. 
 c 
 
 - 482 
 96. 242 
 
 - 373 
 
 - 601 
 
 - 900 
 
 - 901 
 22 
 
 - 363 
 
 - 419 
 
 - 289 
 294. 597 
 
 - 221 
 
 - 427 
 
 - 651 
 779. 788 
 
 - 669 
 
 - 807 
 
 - 234 
 
 - 900
 
 INDEX OF THE CASES CITED. 
 
 Mackreth v. Symmons 
 Maclean, Knight v. 
 Macmaster, Fedder v. 
 Maddison, Ex parte 
 
 , Bingley v. 
 
 Maginnis, Ex parte 
 Maine, Bacon v. 
 Mair v. Glennie 
 
 , Utterson v. 
 
 Malcolm, Fry v. 
 Malin, Wheeler v. 
 Maling, Atkinson t'. 
 Malkin, Ex parte 
 
 , Adams v. 
 
 Maltby, Ex parte 
 
 . -, Anderson v. 
 
 V. Christie 
 
 Manby, Ashbrook v. 
 Mangles, Hurry v. 
 , Mucklow V. 
 
 , Naylor v. 
 
 Mann, Drury v. 
 
 , Evans V. 731. 
 
 . V. Forrester 
 
 V. Moores 
 
 . , Rex t;. 
 
 V. Shepherd 
 
 Manners, Ex parte 
 Mannin v. Partridge 
 Manning, Parker v. 
 Mantell, Bibbins v. 
 — — — , Hewitt 1'. 
 
 Manton v. Moore 
 
 Mara, Ex parte 
 
 March, Ex parte 
 
 ■ V. Carter 
 
 . , Lucas V. 
 
 Margerum v. Sandiford 
 
 Marks, Ex parte 
 
 Mar kl and, Ex parte 
 
 Marlar, Ex parte 
 
 , Worrall v. 
 
 Marlett, Evans v. 
 
 Marlin, Ex parte 
 
 .Marlow, Ex parte 
 
 „ — , Wadham v. 
 
 Marnell, Carpenter v. 
 
 Page 
 
 - 487 
 
 - 269 
 
 - 607 
 
 - 429 
 96. 251 
 26. 818 
 
 - 798 
 
 - 419 
 
 - 729 
 
 - 103 
 
 - 752 
 
 - 419 
 24. 580 
 24. 799 
 
 - 195 
 . 641 
 
 - 782 
 
 - 742 
 
 - 455 
 410. 420. 
 
 475 
 
 - 483 
 313. 354 
 781, 782 
 
 - 483 
 
 - 243 
 313. 694 
 
 - 89 
 
 - 245 
 601, 602 
 
 - 740 
 753, 754 
 753, 754 
 
 74. 422 
 
 - 215 
 200. 206 
 
 - 881 
 
 - 719 
 
 - 882 
 
 - 851 
 
 - 224 
 262, 263 
 372, 373 
 
 - 463 
 
 - 672 
 
 - 90 
 
 - 599 
 
 - 743 
 
 Page 
 
 - 877 
 
 - 411 
 - 437, 438 
 
 - 718 
 
 - 827 
 
 - 303 
 60. 771. 779 
 
 - 644 
 Marshall, Ex parte 223. 253, 254. 
 
 291. 567 
 
 '(2G.&J.) 997 
 
 , Pinkerton v. - 675 
 
 Marr v. Smith 
 Marrable, Ex parte 
 Marsh, Ex parte 
 
 V. Chambers 
 
 ■ , Cooke V. 
 
 ■ V. Martindale 
 
 V. Meager 
 
 — , Sandilands v. 
 
 V. Rutton 
 
 Marsden, Blewitt v. 
 Marston, Ex parte 
 V. Barber 
 
 - 21 
 
 - 900 
 
 - 118 
 
 - 89 
 
 - 180. 316 
 126. 128, 129. 
 263. 424. 437 
 429. 432, 433 
 
 - 290 
 
 - 877 
 
 - 562. 728 
 
 - 374 
 
 - 618 
 126. 602 
 
 63. 76 
 
 Martell, Ex parte 
 Martin, Ex parte 
 241 
 
 . , Collins V. 
 
 ^ V. Court 
 
 . V. Francis 
 
 , King V. 
 
 V. Mitchell 
 
 , V. Norfolk - 618. 861 
 
 V. O'Hara 126. 602, 603 
 
 V. Pevvtress 63. 76. 442 
 
 , Pitcher v. - 615 
 
 , Vaughan v. - 790 
 
 . T'. Winder - 893 
 
 Martini v. Coles - - 480 
 Martin's, St., v. Warren - 801 
 
 Mascall, Watson v. - 372 
 
 Mason, Ex parte - 1^0, 131 
 
 , Brookes v. - 888 
 
 Massey, Twiss v. - - 608 
 
 Masson, Ex parte - 658 
 
 ■ , Scwell V. - 297 
 
 Mastair v. Roe - - 357 
 
 Master v. Bucknall - 286 
 
 V. Winter - 99 
 
 Masterman, Ex parte - 122 
 
 V. Cowie - ■ 303 
 
 Masters v. Drayton - 792 
 
 . , Palmby v. - 602 
 
 Mather, Ex parte - 199. 305 
 Mathew, Lord Gahvay v. - 643 
 V. Sherwall - 734-
 
 INDKX OF THE OASF.S CITED. 
 
 Page 
 
 Mathieson, Ex parte - 318 
 
 Maton, Barnes v. - 753, 754- 
 Matthews, Ex parte - 5. 9. 185 
 
 (C. B. L.) 217 
 
 (1 G. & J.) 
 
 116. 147. 810 
 
 (2 Ves.) 
 
 (6 Ves.) 
 
 , Houghton V 
 
 Maude v. Jowett 
 Maule, Watkins v. 
 Maund, Lloyd v. 
 
 , Watkins v. 
 
 Maundrell, Ex parte 
 Mavor, Ex parte 
 
 Croome 
 Pvne 
 
 {18 Ves. 
 
 114. 
 
 Mawdesley v. Parke 
 Mawson, Ex parte 
 
 , Stock V. 
 
 Maxfield, Todd v. 
 Maxwell, Ford v. 
 May, Anderson v. 
 
 , Mucklow V. 
 
 Maychell, Ex parte 
 Maydwell, Ex parte 
 Maylin v. Eyloe 
 Mayo V. Archer 
 Mayor, Ex parte 
 
 , Bird V. 
 
 V. Steward 
 
 M'Connell v. Hector 
 
 V, Johnson 
 
 M'Donald v. Hanson 
 M'Gae, Ex parte 
 M'George v. Birch 
 M'Intosh I'. Ogilvie 
 M'lver, Fair v. - 253. 712 
 M'Lachlan, Templer v. 
 M'Master v. Kell 
 M'Millan, Ex parte 
 M'Neilage v. Holloway «. 
 M'Aulay, Elmslie v. 
 M'Taggart, Jeffery v. 
 
 419 
 254. 
 291 I 
 645] 
 480 I 
 542! 
 249 i 
 882' 
 696' 
 
 - 398 1 
 41.60. 121.1 
 
 810 j 
 
 - 444. 678 ' 
 
 - 688. 742 
 
 - 742 
 
 - 587 
 
 - 557 
 602. 611.620 
 
 - 895 
 
 - 891, 892 
 - 41. 58 
 
 - 336 
 257. 290 
 
 - 49 
 
 - 33 
 
 - 73 
 
 - 24 
 284. 598. 599 
 
 - 92 
 
 - 862 
 33 
 
 - 450 
 749, 750 
 
 - 400 
 
 Page 
 
 M'Williams, Ex parte 142. 196. 
 
 313. 539. 846 
 
 Mead v. Braham - 188 
 
 , Hurst V. - - 278 
 
 Meager, Marsh v. 60. 771. 779 
 Meagham, in re - - 219 
 
 Mear, Ex parte - 21. 805 
 
 Medlicott, Ex parte - 87. 807 
 Meek, Tate v. - - 487 
 
 Meggott t). Mills 64. 94. 177 
 
 Meglioruchi tj. Royal Ex- 
 change Assurance - 713 
 Mendez, Gray v. - - 742 
 Menham v. Edmonson 747. 809 
 Mennett, Ex parte - 17. 725 
 
 j , Pirie v. - 725. 788 
 
 \ Mercer v> Wise - - 55'ii 
 
 j Merle t;. More - - 797 
 
 ' Meroy, Ex parte - - 652 
 ; Merry, Hockley v. - 288 
 
 Merry weather v. Mellish - 871 
 i Merton, Gregory v. - 619 
 
 i Messiter, Lingard v. 404. 408 
 Mestaer tj. Gillespie - 691 
 
 ' Metcalf, Ex parte - - 260 
 
 ■, Demainbray v. - 211 
 
 ; Meux, Ex parte - - 205 
 
 j V. Howell - -65 
 
 Meyer, Hanson v. - - 454 
 
 i V. Sharpe 489. 635. 690 
 
 j Meymott, Ex parte 20. 28. 360. 
 
 ! 517 
 
 608. 623 
 
 Meyrick, Callen v. 
 
 738 
 893 
 101 
 285 
 99 
 728 
 730 
 
 Michel V. Pareski 
 Middleton v. Hill 
 Middlezoy, Rex v. 
 Milburn, Cowper x). 
 Miles, Ex parte 
 
 V. Rawlins 
 
 V. Williams 
 
 - 863 
 
 - 876 
 
 - 771 
 
 - 884 
 
 - 316 
 - 91. 100 
 
 177. 376. 617 
 Millar, Bradley v. - 659. 723 
 
 , Rutherford v. - 751 
 
 V. Towers - 893, 894 
 
 Miller, Ex parte 89. 103. 807. 
 
 880 
 
 , Brickwood v. 401. 634. 
 
 760 
 c 2
 
 lii 
 
 INDEX OF THE CASES CITED. 
 
 Page 
 
 Miller, Fisher v. - - 457 
 
 V. Seare 144'. 166. 530. 532, 
 
 533 
 
 . . V. Whittenbury - 601 
 
 Miller's case - - 522. 529 
 Milles, Smith v. - 93. 746 
 
 Millikin v. Brandon - - 38 
 Mills, Ex parte 263. 269. 549. 836 
 
 Auriol V. 
 ' V. Ball 451, 
 
 V. Bennett 
 
 , Cleve V. 
 
 V. Elton 
 
 , Grant v. 
 
 — — • V. Hughes 
 
 , Meggott V. 
 
 . , , Taylor v. 
 
 , Timbrell v. 
 
 Milner, Ex parte 
 
 V. Colmer 
 
 , V. Milner 
 
 ., White V. 
 
 Milnes, Lumb v. 
 Milward, Escot v. 
 
 V. Forbes - 
 
 Minchin v. Hart 
 
 . ■-, Whitcomb T'. 
 
 Minet, Ex parte 
 
 V. Forrester 
 
 V. Gibson - 
 
 , Rugg V. 
 
 Missing, Dyer v. 
 Mitchell, Ex parte 
 
 • •, Doe V. 
 
 , Hogg V. ■ 
 
 , Martin v. 
 
 . i-.Oldfield 
 
 . , Raitt V. 
 
 284. 383. 598 
 452,453. 471 
 41. 774. 788. 
 
 - 400 
 
 - 53 
 - 209. 487 
 
 - 26 
 • 64. 94. 177 
 
 - 291 
 
 - 750 
 831 
 5i74 
 377 
 886 
 378 
 717 
 
 813. 829. 
 
 Mitford, Ex parte 
 
 , Davie v. 517: 
 
 _ x\ Mitford 
 
 Modigliani, Nunes v. 
 Moggridge, Ex parte 
 
 872 
 
 216 
 518 
 
 304. 
 
 Page 
 
 Moline, Ex parte - - 244 
 
 Molyneux, Ashton v. - 884 
 
 Molloy, Highmore v. - 20. 22 
 Monk V. Morris 387- 754, 755 
 
 , Pope V. - - 783 
 
 Monkhouse v. Hay - 403. 419 
 Monro, Ex parte - - 423 
 Montefiori v. Montefiori - 299 
 Monteiro, Leigh v. - 615 
 
 Monteith u. Taylor - 751, 752 
 Montgomery, Ex parte 332 
 
 . , Walleyu. - 451 
 
 Montolieu, Lord Elibank u. 373 
 Montrose, Duke of Lauder- 
 dale V. - - 360 
 Moody, Ex parte - 182. 224 
 
 v. King - - 796 
 
 Tj. Spencer - 875 
 
 V- Davis 
 , Horton v. 
 
 Mole u. Smith 
 
 373. 
 429. 
 415. 789 
 
 - 863 
 753. 859 
 214. 289 
 
 - 715 
 
 - 244 
 
 - 454 
 
 - 155 
 216. BQQ 
 350. 741 
 
 - 737 
 
 - 374 
 . 876 
 
 485 
 
 , 222 
 
 .527 
 
 377 
 
 876 
 
 852. 
 
 854 
 
 197 
 
 627 
 
 1001 
 
 Moore, Ex parte (1 G.& J.) 314. 
 540. 589 
 
 V. Bartlirop - 426 
 
 , Manton v. - 74. 422 
 
 V. Wright - - 719 
 
 Moores, Mann v. - - 243 
 Moravia v. Hunter - 558 
 More, Ex parte - - 653 
 ; Merle v. - - 797 
 
 Morgan, Ex parte 334. 478. 565. 
 836. 838 
 
 . , Cox V - - 677 
 
 T. Green - - 740 
 
 , Harvey v. 386. 731, 732 
 
 Ti. Horseman - 72 
 
 , Lewes v. - 881 
 
 V. Prior - - 794 
 
 , Roberts v. - 625 
 
 Morice, Orr v. - 772. 776 
 
 Morland v. Rashleigh - 876 
 
 Morley, Bayley v. - - 428 
 
 , Bloxam v. - 474. 735 
 
 , Coverley v. 609. 619 
 
 , Hughes V. - - 593 
 
 , Wright V. - - 373 
 
 Morris, Ex parte (3 Bro.) 272 
 
 . (iVes.) 270.273 
 
 546 
 V. Cleasby - - 715
 
 INDEX OF THE CASES CITED. 
 
 liii 
 
 Page 
 
 Morris, Monk v. 387. 754, 755 
 Morrison, Button v. (>3. 70. 633. 
 
 638 
 
 Morse, Owenson v. - 247. 452 
 
 Mortimer v. Fleming - 421 
 
 Morton, Ex parte (Buck.) 100. 
 
 111. 807 
 
 (5Ves.) 181. 
 
 351. 438 
 Moss V. Charnock - 419. 691 
 
 , Muller V. - 406, 407 
 
 V. Smith - - 95 
 
 Moth V. Frome - - 364 
 
 Mott, Havves v. - - 292 
 
 Mottley, Anderson v. - 320 
 
 Mougham, Ex parte - 111 
 
 Moule, Ex parte 21 . 29. 42. 805, 
 806.821,822 
 
 — , Crawshay v. - 30 
 
 , Garratt v. - - 53 
 
 Moulson, Jewson v. 372. 374, 375 
 Mountain, Nobes v. - 528 
 
 Mountford, Jellis v. - 92 
 
 t;. Scott - 204 
 
 Mountfort, Ex parte - 202 , 
 
 Mousley, Winter v. - 231. 236 
 Mowbray, Ex parte 16. 248. 321 
 
 — V. Fleming - 895 ' 
 
 Moxon, Palmer v. - - 691 j 
 Moyses v. Little - - 367 j 
 Mucklow V. May - 41. 58 ! 
 
 V. Mangles 4 10. 420. 475 I 
 
 Muggeridge, Ex parte 301 i 
 
 Muller V. Moss - 406, 407 [ 
 
 Mumford, Ex parte 282. 302 \ 
 
 V. Randall - 752 
 
 Munton, Ex parte - - 663 
 Mundee, Bramley v. - 42. 55. 
 Mundell, Lister v. - - 623 
 
 Murphy, Ex parte 215. 217 
 
 V. Cunningham 893 
 
 Murray, Ex parte - - 429 
 
 V. Lord Elibank 373, 374 
 
 Mutrie, Ex parte - - 47 
 Myers, Hammond v. • 788 
 
 , Welch V. - - 394 
 
 Mytton, Toms v. - - ^5 
 
 N 
 Nares v. Saxby 
 Nash V. Nash 
 Nathan, Rex v. 150. 
 Naylor v. Hall - 
 
 V. Mangles 
 
 Neale, Ex parte 
 
 V. Cottingham 
 
 , Goss V. • 
 
 Neat V. Ball 
 Nelson V. Garforth 
 
 Page 
 
 - 792 
 
 - 377 
 156.529 
 
 - 32. 91 
 
 - 483 
 846. 878 
 
 - 399 
 64. 365 
 
 - 472 
 
 - 895 
 
 V. London Assurance 
 
 Company 
 Nerot V. Wallace 
 Nesbitt, Ex parte 
 Nettervill, Colt v. 
 Neville, Kemp v. 
 Newham, Ex parte 
 Newington v. Keys 
 
 Newland v. 
 
 V. Watts - 
 
 Newsome, Buckland u. 
 V. Thornton 
 
 405. 417. 713 
 
 516.518.570 
 
 205. 477. 873 
 
 - 22. 37 
 
 - 622 
 
 - 374 
 
 - 292 
 
 - 196 
 
 - 351 
 
 - 88 
 461.465. 
 
 467 
 
 Newton, Ex parte 164. 341. 344. 
 
 591. 841 
 
 V. Chantler 
 
 V. Newton 
 
 < — V. Trigg 
 
 Nias V. Adamson 
 NichoU V. Glennie 
 Nicholls, Ex parte 
 
 , Baxter v. - 
 
 V. Clent 
 
 Nicholls's case 
 Nicholson, Blake t). 
 
 , Collins u. 
 
 Nightingale v. Devisne 
 ., Jackmor v. 
 
 Nissen, Solomons v. 
 Nix v. Olive 
 Nixon, Ex parte 
 
 u. Jenkins 
 
 , Price V. - 
 
 Nobes V. Mountain 
 Noble V. Adams 
 
 c 3 
 
 - 67 
 
 - 36 
 
 - 25 
 337. 55Q 
 
 - 737 
 
 - 1004 
 
 - 596 
 
 - 477 
 112.850 
 
 - 484 
 
 - 888 
 734. 739 
 
 - 54 
 
 - 465 
 
 - 469 
 
 - 309. 397 
 
 - 736 
 
 - 87 
 
 - 528, 529 
 455. 557. 862
 
 liv 
 
 JNDEX or THE CASES CITED. 
 
 - 876 
 435. 722 
 
 - 501 
 
 - 558 
 
 - 88 
 - 41. 63 
 
 - 645 
 618. 861 
 
 48, 49. 60 
 
 - 70 
 
 - 513 
 
 - 203 
 524. 527 
 
 - 841 
 
 - 281 
 
 Noble, Schoole v. - 
 
 , Vulliamy v. 
 
 Nockold, Ex parte 
 Nokc V. Ingham - 
 Nokes, Ex parte 
 Norden v. James 
 Norfolk, Ex parte - 
 
 , Martin v. 
 
 Norman, Wilson v. 
 Norris, Ex parte - 
 
 V. Levy^ 
 
 V. Wilkinson 
 
 Norris's case 
 North, Ex parte 
 
 — . , Goodtitle V, 
 
 Northam, Ex parte 561. 829. 841 
 
 - 715 
 458, 459 
 591. 841 
 282. 287 
 
 - 611 
 
 - 883 
 
 - 622 
 149. 151. 518. 
 
 523, 524 
 
 - 876 
 180. 317 
 
 39.48 
 
 - 65 
 
 - 1002 
 38. 824 
 
 Page 
 
 O'Hara, Martin v. 126. 602, 603 
 Oldtield, Mitchell v. 872. 876 
 Oldknow, Ex parte - 647 
 
 Olive, Nix V. 
 
 V. Smith 
 
 Oliver, Ex parte 
 
 V. Bartlett 
 Corsbie v. 
 Unwin V. 
 Dixon V. 
 
 Olmius 
 
 Onslow V. Corrie - 
 
 , Pope V. 
 
 Oppenheim v. Russell 
 Orlebar v. Duke of Kent 
 
 469 
 
 - 706 
 150. 523, 524. 
 
 530. 532 
 
 - 406 
 
 - 784 
 - 73. 437 
 
 - 377 
 
 - 395 
 - 320. 357 
 
 461. 484 
 351 
 
 Northcote, Peele v. 
 Northey v. Field 451 
 Northwood, Ex parte 
 Norton, Parker v. 
 
 V. Shakespear 
 
 Nott, Langford u. 
 Nowers v. Colraan 
 Nowlan, Ex parte 
 
 ■ V. Fletcher 
 Smith V. 
 
 Nunes v. Modigliani 
 Nunn, Ex parte 
 
 , Williams v. 
 
 V. Wilsmore 
 
 Nunney v. Hall 
 Nutt, Ex parte 
 
 O 
 
 Oakley, Ex parte 
 O'Brien v. Grierson 
 Ockenden, Ex parte 
 Ocklestone v. Benson 
 Odell, Williams v. - 
 Odium, Flarty v. 
 Odwin V. Forbes 
 Ody, Hall v. 
 O'Farrall, Ex parte 
 Ogilby, Ex parte - 
 Ogilvie, M'Intosh v. 
 Ogilvy, Ex parte 
 
 , V. Hearne 
 
 Ogle, Blackbouni; r. 
 Ogle's case 
 
 - 299 
 
 - 176 
 484. 703 
 
 - 727 
 
 - 883 
 359, 360 
 400. 604 
 
 - 876 
 714 
 142 
 400 
 668 
 864 
 627 
 536 
 
 Oriell 
 
 Orme, Joseph v. 
 
 Ormerod v. Tate - 
 
 Orpe, Kinnersley v. 
 
 Orr V. Morice 
 
 Osbaldeston v. Cross 
 
 Osborne, Ex parte 
 
 . , Silk V. 
 
 , Lilly V. 
 
 Oswell V. Probert - 
 I Otte, Green v. 
 \ Ouchterlony v. Easterby 
 ; Oudley, Small v. 
 \ Oursell, Ex parte - 
 I Overton, Ex parte 
 
 Owen V. Foulkes 
 
 , Lewis V. 
 
 , Parry v. 
 
 Owenson v. Morse 
 
 Owston, Cockerill v. 
 Oxlade v. Perchard 
 Oxley, Ex parte 
 Oxenham, Esdaile v 
 V. Lemon 
 
 196. 333 
 
 - 631. 745 
 
 - 250 
 
 - 874 
 
 - 776 
 
 - 772. 776 
 
 - 884 
 46, 47. 423 
 
 - 555 
 365. 375 
 
 - 373 
 
 - 373. 379 
 720 
 
 71 
 
 - 429 
 
 - 591 
 334. 336. 866 
 
 - 606 
 
 - 897 
 247. 452 
 238. 601 
 
 - 793 
 
 - 217. 820 
 874 
 888 
 
 379. 
 
 Pachelor, Ex parte - 130 
 Paddy, Ex parte - - 99 
 Padget, Fowler v. - 49. 769 
 Page, Ex parte (1 B.& A.) 528. 
 531, 532 
 (2 Bro.} 648
 
 INDEX OF THE CASES CITED. 
 
 Iv; 
 
 Page 
 
 Page, Ex parte (4 Mad.) 336, 337 
 
 (1 Rose) 19. 91. 
 
 171, 172 
 
 V. Bauer 
 
 V. Godden - 
 
 V. Vaughan 
 
 , Winch V. 
 
 Pain V. Teap 
 Pakenham v. Bland 
 Paley v. Field 
 Palmby v. Masters 
 Palmer, Ex parte - 
 
 '. , Andrews v. 
 
 , Barnard v. 
 
 740 
 395 
 740 
 374 
 689 
 
 60 
 
 256 
 
 602 
 
 1006 
 
 124 
 
 80 
 
 Holland v. 568, 569. 571 
 
 V. Moxon - 
 
 — , Russell V. 
 
 Palon, Ex parte 
 Paor, Ex parte 
 Pareski, Michel u. 
 Paris V. Salkeld 
 
 Williams 
 
 Carter 
 
 Prosser 
 Parke v. Eliason - 
 
 . , Mawdsley v. 
 
 Parker, Ex parte 196 
 
 539. 
 
 673. 855. 
 
 - 31. 
 
 • V. Barker 
 
 V. Bleeke 
 
 ■ V. Carter 
 
 , Crossley v. 
 
 V. Dykes - 321 
 
 , Edmonson v. 609 
 
 , Hoare v. 205. 477^ 
 
 V. Manning 
 
 V. Norton - 281 
 
 V. Ramsbottom 
 
 V. Wells - 3' 
 
 Parkes, Ex parte 209 
 
 Parkinson, Ex parte 276 
 Parmester, Ex parte 
 Parr, Ex parte 179. 319 
 
 Parrott, Rex v. - 
 Parry v Owen 
 Parsley, Freeman v. 
 Parslow V. Dearlove 
 
 Page 
 Partington, Ex parte - 332 
 
 Partridge t-. Goff - - 441 
 
 , Humphreys v. 483 
 
 , Mannin v. 601, 602 
 
 Pasley, Lempriere v. 419. 488. 690 
 
 Pasman, Hunt v. 
 Pasmore v. Birnie 
 Pate, Brandon u, 
 Patersoii, Ex parte 
 
 — 7). Tash 
 
 755 
 329. 889 
 
 - 386 
 24. 28. 31. 
 
 579. 821 
 
 - 480 
 , Windham v. 46, 47. 89. 
 
 683 
 Patman v. Vaughan 26. 29 
 
 Paton, Ex parte - 270.311 
 
 •, M'Dougal V. 294. 
 
 Patten v. Brown 30. 34. 37 
 V. Thompson 469. 
 
 Parsons, Ex parte 
 
 87. 
 157. 
 
 597 
 767 
 477. 
 480 
 
 - 225 
 
 - 427 
 
 - 291 
 
 - 1006 
 
 - 371 
 84. 110. 114. 
 
 310. 804. 
 
 - 688 
 
 - 446 
 - 882. 894 
 
 - 713 
 
 - 193 
 
 - 1003 
 641. 648. 
 
 - 245 
 772. 776 
 
 - 204 
 
 - 461 
 618. 868 
 
 - 22. 31 
 
 15, 16. 429. 
 
 431, 432 
 
 Pedder v. Macmaster - 607 
 
 Pedley's case - - 523 
 
 Peele, Ex parte 111. 299. 6J:0. 
 
 643. 842 
 
 V. Northcote - - 715 
 
 , Roufigny v. - - 900 
 
 Peers v. Gadderer - - 637 
 
 c 4 
 
 Pattison v. Bankes 
 Paul V. Bird 
 
 V. Jones - 
 
 Paver, Balme v. 
 Pawlin, Kirk v. 
 Paxton, Ex parte 
 
 Payne, Mavor v, ■ 
 
 , Smith V. 
 
 , Winter v. 
 
 Paynton v. W^alker 
 Peachy, Ex parte 
 Peacock, Ex parte 
 Peake, Ex parte 
 
 , Roberts v. - 
 
 Pearce v. Hooper 
 Pearse, Ex parte - 
 Pearson, Fenton v. 
 
 V. Fletcher 
 
 , Rawlinson v. 
 
 Pease, Ex parte 
 
 487
 
 JNDtX or THi: CASES CITKD. 
 
 Peirce, Adams v. 
 Pemberton, Ex parte 
 _ — , Thomas v. 
 
 Perm v. Bennett 
 Penfold, Hawkins v. 
 Penson v, Johnson 
 Pepj/s, Cooper v. 240. 498 
 Perchard, Oxlade v. 
 Perkin, v. Proctor 
 Perkins, Giles v. 
 
 V. Kempland 
 
 Perrin, Ex parte 
 Perrinij, Bowles v. 
 
 Page ! 
 373, 374- i 
 
 - 872 1 
 
 - 394 
 
 - 624 ; 
 
 460. 676 
 883. 891 I 
 727 I 
 
 - 793 
 144. 553 
 433. 482 
 
 10. 
 
 I'erritt, Crispe v. 
 Perrott v. Ballard 
 . , Rex V. 
 
 Perry, Ex parte 
 
 V. Bowes 
 
 , Curtis V. 
 
 Petrie v. Han nay - 
 Pettit, Ex parte 
 
 , Scott t). - 
 
 Pewtress, Martin v. 
 Peyron, Ex parte 
 Peyton, Ex parte 
 Philips, Blogg V. ■ 
 
 . . V. Hunter 
 
 , Macaulay v. 
 
 Philipson v. Chase 
 Phillips V. Brown 
 
 V. Dicas 
 
 , Lavie v. - 
 
 Rodie 
 
 228 
 141 
 
 - 201 
 88. 123. 128 
 
 - 521 
 149. 509. 515. 
 
 520. 524. 529 
 
 - 134, 
 
 - 349 
 
 Pigou, Ex parte 
 Pine, Ex parte 
 Pinkerton, Ex parte 
 
 . V. Marshall 
 
 Pinhorn, Bainbridge v. 
 Pirie v. Mennett 
 Pistor V. Dunbar 
 Pitcher v. Martin 
 Pitt, Hoffman v. 
 
 V. Yalden 
 
 Pixley, Rex u. 
 
 198 
 725 
 
 V. Sheriff of Essex 
 V. Thompson 
 
 Philpot V. Corden 
 V. Hoare 
 
 Phipps, Forbes v. - 
 
 Pickart, Ex parte 
 
 Pickering, Smith v. 248. 321. 690 
 
 Pickersgill, Chapman v. 136 
 
 : — , Hull V. - - 556 
 
 Pickford, Aspinall v. - 484 
 
 , Rowe V. - - 452 
 
 Pickstock V. Lyster - 64. 365 
 
 Piercy, Levvi.s v. - 274. 593 
 
 Plaistow, Cecil v. - 
 
 Planck, Staines v. 
 
 Plant, Dixon v. 
 
 Piatt, Crisp V. 
 
 Plumbe, Abbott v. 
 
 Plumer, Taylor v. 
 642 , Plummer, Ex parte 
 776 V. Lea 
 
 - 642 u. Smith v. 
 
 - 305 Pogson, Fletcher v. 
 
 - 999 Poland v. Giyn 
 
 - 452 Pollard, Cood v. 
 63. 76. 442 Pollock, Appleby v. 
 
 - 322 Pomeroy, Ex parte 
 
 - 836. 840 Poole, Ex parte 
 
 - 675 i V. Ball 
 
 - 400 ] — , Howard v. 
 
 - 373 : , Weston v. 
 
 - 891 Pope V. Monk - 
 . 279 ; V. Onslow 
 
 - 568. 879 j Popham, Cheap v. 
 - 21. 379 , Thomas v. 
 
 - 486 I Poreau, Raikes v. 
 48 Port V. Turton 
 
 693 i Porter, Ex parte 
 
 609 \ V. Cox ■ - 
 
 390 I Portsmouth Bank case 
 377 ) Potter v. Brown 
 
 545 \ , Kemp v. 
 
 — V. Starkie 
 
 I'age 
 
 271 
 664 
 651 
 
 673 
 350 
 789 
 
 - 881 
 
 - 615 
 - 406. 793 
 
 - 901 
 - 490. 597 
 
 - 299 
 
 - 213 
 
 - 884 
 25 
 
 761. 777 
 
 - 428 
 
 - 265 
 387. 754, 755 
 
 - 486 
 
 - 755 
 . 444 
 
 - 488 
 
 - 463 
 
 - 397 
 " 130. 822 
 
 - 760 
 
 - 608 
 
 - 887 
 
 - 783 
 - 320. 357 
 
 - 863 
 
 - 349 
 
 - 46 
 27. 30. 36, 37 
 
 - 331 
 
 605. 
 
 752 
 251 
 618 
 189 
 748 
 400 
 
 Potts, Hunter v. 
 Poucher, Ex parte 276. 278. 596. 
 
 861 
 Poulter, Wilson v. - - 734 
 Powell, Ex parte - - 547 
 Doc T>. - - 1001
 
 INDEX or THE CASLS CITED. 
 
 IVll 
 
 Powell V. Evans 
 
 ■— , Wackerbath v. 
 
 Pownall, Hoist v. - 
 Foynton v. Foster 137. 7 
 Prankerd, Ex parte 
 Prater, Vincent v. - 
 Pratt, Crisp v. 25. 
 
 Pratt's case 
 Prescott, Ex parte 
 
 — ■ , Snee v. 450, 
 
 Preston, Ex parte 
 
 , Ewer V. 
 
 Prevost, Cazenove v. 
 Price, Ex parte 206. 
 
 , Alsop V. 
 
 , Ashbourn v. 
 
 , Grisley v. 
 — — , Jones V. 
 
 V. Nixon 
 
 Prichett, Ex parte 
 Prickett v. Down - 
 Priddey, Ex parte 
 Priddle v. Thomas 
 Prideaijx, Ex parte 91 
 Primrose i'. Bromley 
 Pringle v. Hodgson, 373 
 
 , Willett V. 
 
 Prior, Morgan v. - 
 Pritchett, Webb v. 
 Probinia v. Roberts 
 Probert, Oswell v. - 
 Proctor, Perkin v. 
 
 , Rohde V. - 
 
 Prosser, Ex parte 42. 
 810. 822. 
 
 , Evans V. - 
 
 ■ , Park V. - 
 
 ■ • V. Smith 
 
 Proston, Ex parte 141. 
 Proud, Hornblower v. 
 Proudfoot, Ex parte 
 
 Prowse, Ex parte 
 Prj'ce, Ex parte 
 
 , West V. - 
 
 Pryn v. Beale 
 Pryor v. Hill - 
 
 101 
 
 - 567 
 328. 339, 
 340. 506 
 
 - 458 
 775. 830 
 
 - 897 
 
 - 51 
 365. 375 
 
 - 518 
 
 - 706 
 451. 463. 
 
 58. 224 
 
 - 764 
 
 - 402 
 538. 826 
 287. 617 
 
 - 903 
 
 - 764 
 
 - 895 
 
 - 87 
 
 - 882 
 
 - 683 
 22 
 
 - 754 
 . 880. 890 
 
 326. 328 
 
 . 376, 377 
 
 274. 596 
 
 - 794 
 
 - 892 
 
 - 750 
 
 - 373 
 144. 553 
 
 - 244 
 147. 773. 
 . 828. 899 
 
 - 719 
 
 - 57 
 42 
 
 806. 816 
 405. 430 
 126. 324. 
 350. 810 
 , 190. 819 
 
 - 998 
 
 - 1004 
 
 - 683 
 
 - 372 
 
 Puleston, Ex parte 
 Puller, Bent v. 
 , Bolton V. 
 
 — V. Roe 
 
 Pulling V. Tucker 
 Purling Hammersley v. 
 Punshon, Rex v. 
 Pye V. Daubuz 
 Pym, Sweet v. 
 Pyne v. Erie 
 , Mavor v. 
 
 461. 
 
 Page 
 
 123. 805 
 
 - 482 
 429. 433 
 
 - 710 
 - 41.73 
 
 677 
 781. 788 
 
 - 357 
 477. 483. 
 
 - 877 
 688. 742 
 
 Q 
 
 Quantock, Ex parte - 397 
 
 V. England 98. 807 
 
 Queen v. Arnold 313. 490. 694 
 Quin V. Keefe - 607. 618 
 
 Quinten, Ex parte - 709 
 
 R 
 Rabitt V. Gurney - 
 Rabone v. Williams 
 RadclifFe, Ex parte 
 Radmore v. Gould 
 Raikes v. Poreau ■ 
 ■, Wynne v. 
 
 Railstone, Yates u, 
 Raitt V. Mitchell - 
 Ramsay v. Macdonald 
 Ramsbottom, Ex parte 
 
 i t). Cator 
 
 V. Harvey 
 
 , Hawkins v. 
 
 , Hooper v. 
 
 V. Lewis 
 
 , Parker 
 
 Randall, Bisse v. 
 
 , Feise v. 
 
 — V. Fuller 
 
 , Mumford v. 
 
 ' 793 
 428. 717 
 
 - 591 
 
 - 760 
 
 - 46 
 
 - 246 
 
 - 487 
 
 - 485 
 
 - 22 
 578 
 
 - 631 
 
 - 59 
 203 
 477 
 
 42. 631. 
 
 745. 769 
 
 237 
 
 - 779 
 
 - 571 
 
 - 876 
 
 - 752 
 
 Ranelagh, Lord, v. Thorn- 
 hill - . . 897 
 Rankin, Ex parte - 826 
 
 V. Horner - 783 
 
 j Ranking v. Barnard - 714 
 
 i Raphael, Birdwood v. - 211 
 
 I , Rex V. - - 781
 
 Iviii 
 
 INDEX OF THE CASES CITED. 
 
 Raslileigh, Ex parte 
 
 — _ , Morland v. 
 
 Rathbone, Ex parte 
 Rattray, Ex parte 
 Raven v. Dunning 
 Rawlins, Glassington i 
 
 , Miles V. 
 
 Rawlinson, Ex parte 
 
 , Kidd V. 
 
 Pearson 
 
 .- V. 
 
 .11 V. jTcaisuii - ii/i' 
 
 Rawson, Ex parte - 130, 
 . ( 1 Jac. ) 1 000 
 
 Page 
 
 194. 197 
 
 - 876 
 
 - 248 
 
 - 190 
 
 - 796 
 81. 682 
 91. 100 
 
 840. 854 
 64. 407 
 22. 31 
 130, 131 
 
 V. Haigh 
 
 Ray, Ex parte 
 
 V. Davis 
 
 Raynes, Kettear v. 
 Read, Ex parte 188. 
 
 , Barwick v. 
 
 V. Cooper 
 
 . V. Dupper 
 
 V. Sowerby 
 
 , Stonehouse v. 
 
 , Todd V. 
 
 V. Vaughan 
 
 Ward 
 
 46. 778 
 
 - 378 
 
 - 731 
 
 - 291 
 261. 325. 
 
 587. 623 
 
 - 360 
 775. 842 
 
 - 874 
 187. 609. 612 
 
 - 720 
 
 - 717 
 
 - 732 
 . V. vv iiru - 687. 697 
 
 Reader, Ex parte - 240. 286 
 Redfern v. Sowerby - 872 
 
 Redfern v. oowe 
 Reece v. Rigby 
 Reed v. Blades 
 , Cann v. 
 
 V. Hopper - - 776 
 
 V. James 732, 733. 739. 773. 
 
 794 
 
 ,Wagstaffv. - - 687 
 
 V. White 
 
 Reeve, Ex parte 
 Reid, Ex parte 
 
 V. Ayton 
 
 Ronton, Watson v. 
 Rew, Ex parte 
 Rex V. Abbott 
 
 V. Adams 
 
 , V. Aickles 
 
 . V. Bach 
 
 r. Bewdlev - - 490 
 
 V. Bullock 95. 773. 775. 799. 
 
 817 
 
 900 
 
 64 
 
 325 
 
 776 
 
 645 
 
 273. 664 
 
 - 286 
 
 - 446 
 605, 606 
 
 - 836 
 201. 333 
 
 - 491 
 
 - 772 
 887. 897 
 
 490 
 
 Page 
 
 Rex V. Cole - - 21 
 
 V. Cotton - 313. 490 
 
 V. Crumpton - 490. 694 
 
 V. Davis - 280. 723 
 
 V. Dudman - - 559 
 
 V. Eggington 222. 301. 426 
 
 V. Evans - - 558 
 
 V. Fowler - - 495 
 
 V. Glenny - - 490 
 
 ■" V. Green - - ib. 
 
 V. Hopper - - 695 
 
 V. Jackson - - 534 
 
 V. Jones - 491. 494 
 
 V. Lee - - 479, 480 
 
 U.Mann - 313.694 
 
 V. Middlezoy - 771 
 
 V. Nathan 150. 156- 529 
 
 V. Page - - 80. 514 
 
 V. Perrott 149. 509. 515.520. 
 
 524. 529 
 
 V. Pixley 
 V, Punshon 
 V. Raphael 
 V. Saunderson 
 V. Tarlton 
 
 Reynolds, Ex parte 
 
 , Davis V. 
 
 , Jenkins v. 
 
 Rhodes, Ex parte 127 
 
 , Thomas v. 
 
 Rice, Abbott v. 
 Richards v. Richards 
 
 , Speake v. 
 
 Richardson, Ex parte 
 
 490. 597 
 781. 788 
 
 - 781 
 
 - 491 
 
 - 494. 
 335. 343 
 
 - 460 
 
 - 289 
 811. 824. 
 
 875, 876 
 104. 813 
 
 - 877 
 
 - 386 
 
 - 388 
 225. 298. 
 
 405. 417. 585. 593 
 V. Bradshaw - 29 
 , Butler V. - 438 
 V. Gooding - 635 
 V. Goss 452.471.483 
 V. Griffin - 739 
 
 V. Kirkman - 248 
 
 Turner v. 
 
 Richmond, Heapy v. 
 
 — , Hopper V 
 
 Ricketts, Ex parte 
 Rickman, Stewart v. 
 Rideing, Thomas v. 
 
 ■ 395 
 - 88. 760 
 . 110.773 
 
 - 509.511 
 42. 181. 783 
 
 - 731.782
 
 INDEX OF THE CASES CITED. 
 
 lix 
 
 Page 
 36 
 832 
 751 
 644 
 700 
 566 
 887 
 900 
 74.2 
 739 
 135 
 671 
 
 Ridge, Ex parte 
 Ridgeway, Baker v. 
 Ridley, Harrison v. 
 
 ^ — V. Taylor 
 
 Ridout V. Brough 
 Rigby, Ex parte 
 
 V. Edwards 
 
 , Reece v. - - 
 
 Rigg, Keay v. 
 
 V. Wilmer 
 
 Rimene, Ex parte 
 Ring, Ex parte - 
 Ringstead v. Lady Lanes- 
 borough - - - 
 Roahde, Sharpe v. 
 Roake V. Day rill 
 
 Robarts, Ex parte - - lo^ 
 Roberts, Ex parte 245, 247- 345. 
 510. 817. 
 92. Ill 
 
 - 625 
 
 - 245 
 
 - 750 
 
 - 603 
 
 - 378 
 42. 82 
 
 - 715 
 
 - 744 
 51.60 
 
 - 250 
 
 - 391 
 '320. 394 
 
 542 
 243 
 
 21 
 196. 369 
 - 490 
 132 
 
 V. Hardy 
 
 V. Morgan 
 
 V. Peake - 
 
 , Probinia v. 
 
 — — — , Smith V. 
 
 t'. Spicer 
 
 T). Teasdale 
 
 , Weinholt v. 
 
 Robertson, Graham v 
 ■-- V. Liddell 
 
 48 
 
 Robinson, Ex parte 
 
 . , Brandon v. 
 
 , Brome .V. 
 
 . , Glendinning v. 
 
 • , Kellock V. 
 
 Robson, Ex parte 
 
 '■ V. Calze 
 
 v. Kemp 
 
 Rodie, Denton u. 
 
 , Phillips V. 
 
 Roding, Ex parte 
 Roe V. Galliers 
 ■ V. Jones 
 
 Page 
 
 Roe, Mastair v. - - 357 
 
 , Puller V. - - 710 
 
 Roebuck, Gumming v. 386. 555 
 Roftey, Ex parte 9. 98. 177. 242. 
 
 807 
 Rogers, Ex parte 
 
 -, Bowles V. 
 
 , Brookes v. 250, 
 
 V. James 
 
 . V. Mackenzie 
 
 V. Stevens 
 
 V. Macdonnel 419,420 
 , Taylor v. 412. 477 
 . t). Vale 197. 277.281 
 
 V. Ward - 901 
 
 Wilkinson 645 
 
 - 349 
 
 - 324 
 - 565. 568 
 
 60. 763. 798 
 
 - 645 
 
 - 486 
 
 - 1003 
 
 - 390 
 
 - 364 
 
 251. 
 
 254. 
 
 509 
 209 
 291 
 99 
 669 
 243 
 244 
 64 
 290 
 900 
 
 Rolle, Ryal v. - 403. 405. 423 
 Rolleston, Hague v. - 630 
 
 V. Hibbert - 419 
 
 V. Smith - ib. 
 
 Rohde v. Proctor 
 Roiston, Bucknall v. 
 Rolfe V. Caslon 
 V. Rogers 
 
 257. 
 
 Rooke, Ex parte 
 Roscoe, Ex parte 
 Rose V. Barnes 
 
 V. Green 78 
 
 V. Hart 
 
 V. Rowcroft 
 
 - 271.549 
 102. 162. 849 
 
 - 763 
 79. 81, 82. 763 
 
 483. 701, 702 
 
 - 97 
 Ross, Ex parte (Buck.) - 709 
 
 ( 1 Rose) 384. 
 
 516. 538, 539, 540. 544. 837- 866 
 
 (2G. &J.) 
 
 , Attorney-General v. 
 
 V. Langston 
 
 , Solomons v. 
 
 , Stacey v. 
 
 , Wyborne v. 
 
 Rothschild, Sheldon v. 
 Round 1). Hope Byde 
 Roufigny v. Peele 
 Routledge, Wharen v. 
 Row V. Dawson 
 Rowe, Ex parte 
 
 , Gardner v. 
 
 V. Jackson 
 
 V. Lant 
 
 V. Pickford 
 
 Rowcroft, Rose v. 
 Rowland v. Ashby 
 Rowlandson, Ex parte 1 
 
 999 
 496 
 
 - 869 
 
 - 402 
 
 - 710 
 
 - 611 
 
 - 708 
 
 - 72 
 
 - 900 
 
 - 31 
 
 - 423 
 
 - 140 
 
 - 437 
 
 - 374 
 
 - 759 
 
 - 452 
 96. 763 
 
 - 1004 
 31. 640. 
 
 658
 
 Ixii 
 
 INDEX OF THE CASES CITED- 
 
 Page 
 
 Sill, Boardman v. - - 479 
 
 V. Worswick 399, 400. 402 
 
 Sillitoe, Ex parte - - 665 
 
 Simmonds v. Knight - 759 
 
 Simonds, Ex parte - 1005 
 
 Simpson, Ex parte 140. 193. 275. 
 307. 317 
 
 (2 Rose) 319 
 
 il5Ves.) 842. 
 
 855. 899 
 
 , Cowell V. - 873 
 
 ., Hassells v- - 41. 67 
 
 Simpson's case - - 537 
 
 Sinclair v. Stevenson - 409 
 
 Singleton v. Butler - 444 
 
 Skaife v. Howard 778, 779. 786 
 Skinner, Gardner's Assignees 
 V. 237. 307 
 
 i , Low V. - -65 
 
 Skip, Ex parte - - 303 
 
 • V. Harwood - - 124 
 
 , West V. - - 417. 425 
 
 Skirratt, Ex parte - - 441 
 
 Slack, Ex parte - 231. 855 
 
 — — — , Gardner v. - - 760 
 
 Slatford, Ex parte - 113 
 
 Slaughter v. Cheyne - 611 
 
 Sleech's case - - 596 
 
 Slipper V. Lidstone - - 709 
 Slodden, Hartshorn v. - 446 
 Sloper V. Fish - - 369 
 
 Slow, Ex parte - - 639 
 
 Sluby V. Hay ward - - 45 
 
 Small, Ex parte - - 119 
 
 , Hale u. - - 767 
 
 V. Oudley - - 71 
 
 Smallcombe v. Bruges - 763 
 
 V. Cross - 693 
 
 Smith, Ex parte (1 Atk.) 899 
 
 (3 Bro.) 180.211. 
 
 243, 244. 311. 500 
 (Buck.) 177.405 
 
 409. 429. 669. 831. 842 
 (C.B.L.) 217 
 
 222. 247. 252. 310. 510 
 
 (Cowp.) 39 
 
 (1 G. & J.) 100. 
 
 118. 129. 182. 579. 653. 663. 
 
 819. 853 
 
 Smith, Ex parte (2G. & J.) 
 
 (2 Swanst. 
 
 . (6 Mad.) 
 
 (1 Rose) 
 
 V. Barclay 
 
 • V. Beadnell 
 
 V. Boheme - 
 
 • T). Bowles - 
 V. Brocklesby 
 V. Bromley 
 
 • V. Broomhead 
 V. Buchanan 
 
 , Cameron v. ■ 
 
 V. Coffin 
 , Crosse V. - 
 
 V. Currie 
 
 Page 
 
 999 
 
 1003 
 
 668 
 
 , , 123. 
 
 441. 803. 820. 822 
 -(2 Rose) 117. 
 178. 180.317. 818 
 -(IV.&B.) 317 
 
 - (5 Ves.) 132. 
 
 630. 878 
 
 - (19 Ves.) 10. 
 106. 117. 889 
 
 - 731 
 158. 788 
 
 - 245 
 
 - 461 
 
 - 876 
 568. 570 
 
 - 135 
 
 - , Dally V 
 — , Darby v. 
 
 — V. De Silva 
 — , Doe V. 
 
 — V. Field 
 
 — V. Gainsford 
 — , Gillies V. - 
 
 — V. Goddard 
 — , Haille v. - 
 — , Hankey v. 
 — , Hartley v. 
 
 Hods on 
 
 350. 
 
 380. 
 
 136. 
 
 , Hooper v. 
 
 , Hopkinson v 
 
 T'. Jamieson 
 
 , JefFs V. 
 ; Jones T). 
 , Ledbury v. 
 , Marr v. - 
 ■ V. Milles 
 , Mole V. - 
 
 , Moss V. 
 
 — , Olive V. 
 
 — — — I). Oriel 1 
 
 607 
 
 90 
 
 367 
 
 243 
 
 58 
 
 27 
 
 416 
 
 635 
 
 600 
 
 473 
 
 890 
 
 - 504 
 
 - 746 
 
 - 457 
 
 - 708 
 64. 407 
 
 706. 733 
 - 42. 82 
 
 - 896 
 325. 345. 
 
 644. 656. 743 
 
 - 55 
 
 - 211 
 
 - 749 
 
 - 877 
 - 93. 746 
 
 - 1001 
 
 - 94 
 
 - 706 
 - 631. 745
 
 INDEX OF THE CASES CITED. 
 
 Ixiii 
 
 Smith 
 
 r>. Payne 
 ■ V. Pickering 
 
 V. Plummer 
 
 , Prosser v. - 
 
 V. Roberts - 
 
 — — — , Rolleston v. 
 
 V. Smith 
 
 V. Stokes 
 
 V. Stracey - 
 
 V. Wainwright 
 
 V. Wattleworth 
 
 , Willock V. - 
 
 , Wordail v. 
 
 ■, Young V. - 
 
 Smithers, Hassall v. 
 Smithey v. Edmonson 
 Smithson v. Johnson 
 Snaith v. Gale 
 Sneaps, Ex parte 
 Snee v. Prescott 
 Snelgrove v. Hunt 
 Snook V. Davidson 
 Sole, Stephens v. - 
 Sollers, Ex parte - 
 Solly, Evans v. - 
 Solomon, Ex parte 
 
 ■, Kenyon v. 
 Solomons, Benfield v. 
 
 Nissen 
 Ross 
 
 Soppit, Ex parte 
 Soulsby V. Lea - 
 South, Ex parte 
 South Sea Company v. Wy 
 
 mondsell 
 Southcote V. Braithwaite 
 Southey v. Butler 
 Southwood i;. Taylor 
 Soutten V. Soutten - 
 Sowerby, Bolton v. 
 
 V. Brooks 
 
 — , Esdaile v. 
 
 — — — , Read v. 
 
 Page 
 
 - 446 
 248. 321. 
 
 690 
 
 - 486 
 
 - 42 
 
 - 603 
 
 - 419 
 370. 641 
 631. 745 
 
 - 78 
 
 - 870 
 889 
 
 - 760 
 - 64. 406 
 
 - 765 
 
 - 429 
 134.136 
 
 - 291 
 
 - 255 
 723 
 463 
 732 
 
 - 482 
 
 - 403 
 
 - 431 
 
 - 494 
 177. 489 
 536. 537 
 
 303. 559, 
 560 
 
 - 465 
 
 - 402 
 121. 810 
 
 - 780 
 
 280. 
 450, 451. 
 
 423 
 
 • , Redfearn v. 
 
 Sowley V. Jones 
 Spackman, Bennett v. 
 
 742 
 602 
 678 
 699 
 295 
 - 26. 33 
 
 208. 676. 696 
 - 244 
 
 187. 609. 612 
 872 
 622 
 681 
 
 Sparkes, TuUy v. 
 Sparrow, Ex parte 
 Speake v. Richards 
 Spear v. Travers 
 Spears v. Hartley - 
 Spence v. Jones - 
 Spencer, Moody v. 
 V. Vanacre 
 
 Spicer, Andrews v. 
 , Roberts v. 
 
 Spink V. Hare 
 Sponge, Ex parte 
 Spooner, Bigg v. - 
 Spottiswood, Harman v 
 Spragg V. Binkes - 
 Spurling, Ex parte 
 Squire, Griffith v. - 
 V. Johns - 
 
 Page 
 215. 732 
 
 - 842 
 
 - 388 
 413. 461 
 
 - 483 
 
 - 508 
 
 - 875 
 
 - 689 
 
 - 683 
 
 - 378 
 
 - 891 
 
 - 336 
 
 - 49 
 
 - 62 
 
 - 559 
 
 - 236 
 
 - 891 
 
 - 26 
 
 - 622 
 
 - 710 
 42. 822. 828 
 
 58. 425. 790 
 
 Stacey v. Frederici 
 
 V. Ross - 
 
 Staff, Ex parte 
 Stafford v. Clarke 
 Staines v. Planck - 
 Stamford Friendly Society, 
 
 Ex parte 
 Stanborough, Ex parte 
 Standgroom, Ex parte 
 Staniforth v. Fellows 
 Staples, Ex parte - 99. 
 
 Stapleton, Langley v. 
 V. Macbar 
 
 Starey, Barnes v. 
 Starkie, Potter v. - 
 St. Barbe, Ex parte 
 Stead, Ex parte 
 
 V. Gascoigne 
 
 , Kay V. 
 
 Stedman v. Martinnant 
 
 747 
 
 Steele, Ex parte 
 181. 211. 857. 
 Swan V. 
 
 213 
 
 300 
 186 
 420 
 711 
 640 
 871 
 601 
 242 
 748 
 671 
 141 
 ,748 
 778 
 616 
 168. 
 
 Stein, Carstairs v. 
 ; Copeland u. 
 
 Steinmetz v. Haltkin 
 Stephens, Ex parte 
 . , Copeland v. 
 
 Sole 
 
 255. 
 91. 148. 
 872, 873. 890 
 
 - 644 
 303. 828 
 
 480. 681.691 
 373, 374 
 
 - 721 
 320. 393. 
 598, 599 
 
 - 403
 
 Ixiv 
 
 INDEX OF THR CASF.S CITF.D. 
 
 Stevens, Ex parte 
 
 . ■ V. Eliz^e 
 
 Page 
 
 22. 100. 592. 
 
 850. 870 
 
 118. 618. 820 
 
 .^ V. Jackson 
 
 ~ , Rogers v. - 
 
 , Williams v. 
 
 Stevenson v. Blakelock 
 
 , Hanson v. 
 
 •— , Hesse v. 
 
 , Sinclair v. 
 
 V. Wood 
 
 80. 
 
 100 
 
 - 243 
 25. 799 
 
 872, 873 
 320. 394 
 389. 552 
 
 - 409 
 444. 678 
 
 Stevenson's case - - 118 
 
 Steventon v. Watson - 896 
 
 Steward, Mayor v. 284. 598, 599 
 Stewart, Ex parte 16. 18. 248. 
 363. 743. 829 
 
 . V. Ball - 34. 767 
 
 V. Rickman 42. 181. 783 
 
 Stiles, Ex parte 193 
 Stirling, Ex parte 
 
 502. 545 
 
 - 872 
 
 Boehm v. 
 Maws on 
 
 Stock V. 
 Stocker, Ex parte - 
 Stockfleth V. De Tastet 
 Stocks, Ex parte 
 
 252 
 557 
 108 
 
 788 
 123 
 
 Stokes, Ex parte 
 
 103. 123. 806. 
 816. 819. 826 
 
 V. La Riviere 
 Smith V. 
 
 Stone, Ex parte 
 
 V. Lidderdale 
 
 , Webb V. - 
 
 Stonehouse, Ex parte 
 
 V. De Silva 
 
 V. Read 
 
 Stones, Ex parte 
 Storer v. Hunter 
 Story, Ex parte 116. 
 
 - 452 
 631. 745 
 253. 838 
 
 - 360 
 
 - 886 
 
 - 340 
 731 
 
 - 720 
 104. 158 
 404, 405 
 147. 810. 
 
 866 
 
 - 467 
 
 - 160 
 243 
 
 Stoveld V. Hughes - 
 Stow, Ex parte - 
 St. Qiuintin, Walwyn v- 
 Stracey, Ex parte 566. 581. 843. 
 
 850 
 
 V. Deey - - 428 
 
 V. Hulse - - 495 
 
 , Smith V. - - 78 
 
 Strahan, Wickes v. - 608 
 
 Stratton v. Hale 
 Streatfield v. Halliday 
 
 Stretton v. Hale 
 •, Lloyd V. 
 
 Stroud, Ex parte 
 Strutt, Ex parte 
 Stuart, Ex parte 
 Tinker 
 
 Studdy V. Tingconibe 
 Stupart, Blackburn v. 
 Sturdy V. Arnaud 
 Suffolk, Earl, in re 
 Summersett v- Jervis 
 Sumner v. Brady 
 Surman, Scott v. 
 Surtees, Ex parte 
 
 Forster v. - 
 
 Suse, Keyser v. 
 Sutton, Ex parte 119- 
 
 , Abell V. 
 
 V. Weeley 
 
 Swan, Calcraft v. 
 V. Steele 
 
 Swanston, Twogood v. 
 Swanzy, Ex parte 
 Swayne v. Wallinger 
 Sweet V. Pym - 461 
 Sydebotham, Ex parte 
 
 Symes, Ex parte 
 Belch V. 
 
 Symmons, Mackreth v. 
 Symonds, Cobb v. 
 , Groome v. 
 
 TaafFe, Ex parte 
 Tabley, Scriven v. 
 Tait V. Carrick 
 Taitt, Ex parte 
 Tamplin v. Diggins 
 Tanner, Ex parte 
 V. Hague 
 
 Page 
 
 - 222 
 
 128. 732. 
 745 
 
 - 218 
 105. 801 
 
 - 1003 
 
 - 638 
 
 - 334 
 
 - 360 
 
 - 215 
 
 - 832 
 
 - 740 
 
 - 20 
 ■ 33. 553 
 
 - 571 
 427. 429 
 317. 343 
 262. 284 
 
 - 453 
 398. 846. 
 
 890 
 
 - 631 
 ' 30. 766 
 
 - 623 
 
 - 644 
 
 - 549 
 
 - 659 
 
 - 98 
 . 477. 483 
 
 21. 100. 
 805 
 
 - 181 
 
 - 874 
 
 - 487 
 28. 78. 93 
 
 - 884 
 
 - 219 
 
 - 374 
 
 - 751 
 648. 653 
 675. 699 
 
 - 334 
 
 - 100 
 
 Tappenden v. Burgess 42. 67. 69, 
 
 70 
 Tarleton, Ex parte - 142
 
 INDEX OF THE CASES CITED. 
 
 Ixv 
 
 Page 
 Tarleton, Backhouse v. 32. 129 
 
 , Rex V. - ' 494 
 
 Tarn v. Heys - - 889 
 
 Tarrant, Kinnear v. - 753, 754 
 Tash, Paterson v. - - 480 
 Tate V. Meek - - 487 
 
 , Ormerod v. - 874 
 
 Tatlock V. Harris - 244 
 
 Tattle V. Greenwood - 1002 
 
 Taylor, Ex parte (1 G. & J.) 186. 
 
 566 
 (2 Rose) 551. 
 
 668 
 (18 Ves.) 319. 
 
 652 
 
 , re (3 East) - 525 
 
 , Buckley v. - 268 
 
 , Carr v. - 373, 374. 714 
 
 , Clark V. - - 881 
 
 — — — , Crump V. - - 542 
 
 V. Kinloch - 762, 763 
 
 , LongstafFe v. - 881 
 
 , Lowndes v. - 561 
 
 V. Mills - - 291 
 
 , Monteith v. - 751, 752 
 
 ■ , V. Plumer - - 428 
 
 '^ , Ridley v. - - 644 
 
 — V- Robinson - 412. 477 
 
 ' — , Southwood V. - 699 
 
 V. Taylor - - 1003 
 
 u. Wheeler - 358 
 
 V. Young 239. 396. 598, 
 
 599 
 Taylor's case (8 Ves.) 149. 151. 
 516. 523, 524. 531. 836 
 Teap, Pain v. - - 689 
 
 Teasdale, Roberts v. - 42. 82 
 Tellis, Ex parte - - 586 
 Templar, Cohen v. - 791. 868 
 Temple, Ex parte - 358. 541 
 
 m — '■ , Alderson v. - 442 
 
 Templer v. M'Lachlan - 893 
 Terrell, Ex parte - 547- 667 
 Tetby, Binns v. - - 793 
 
 Tew V. Earl of Winterton 269. 272 
 Thackrah v. Wood - 95 
 
 Tliackray u. Blackett - 244 
 
 Thackthwaite v. Cock - 410 
 
 Thelwall, Ex parte - 845 
 
 Thistle wood, Ex parte 160. 228, 
 
 229 
 
 Thomas, Ex parte 96. 251. 652, 
 
 653. 723. 838 
 
 V. Desanges 682. 694. 748 
 
 , Garth v. - 358. 729 
 
 V. Pemberton 
 
 ■ V. Popham 
 
 , Priddle v. 
 
 , Prothero v. 
 
 V. Rhodes 
 
 V. Rideing 
 
 , Salte V. 
 
 , Shipman v. 
 
 Thomason, Ex parte 
 V ~ 
 
 - 394 
 
 - 349 
 
 - 754 
 
 - 894 
 104. 813 
 731. 782 
 
 - 773 
 
 - 711 
 
 - 838 
 Frere630,631.711. 
 
 744 
 Thompson, Ex parte (1 Atk.) 303 
 (1 G. & J.) 
 
 840 
 (1 Rose) 582. 
 
 585 
 (1 Ves.) 84. 
 
 103. 123. 819. 898 
 
 (9 Ves.) 119 
 
 V. Beatson - 444. 679 
 
 ■ V. Bridges - 764 
 
 V. Councell - 544 
 
 , Crookshank v. - 290 
 
 ■ V. Freeman - 446 
 
 , Gibson v. - 35 
 
 V. Giles 431, 432, 433 
 
 , Keble v. - 224. 653 
 
 , Patten v. 469. 477. 480 
 
 , Phillips V. - 693 
 
 ', Shaw V. - 58 
 
 , Whitwell V. 63. 65. 73. 
 
 75. 632. 641 
 Thorley, Ex parte 
 Thome, Black v. - - 
 Thornhill, Lord Ranelagh v 
 Thornton v. Dallas • - 
 
 . V. Dixon 
 — ■ V. Hargreaves 
 , Newsome v. 461 
 
 Thorpj Bricheno v. 
 d 
 
 345 
 790 
 897 
 610 
 641 
 447 
 465. 
 467 
 1006
 
 Ixvi 
 
 INDEX OF THE CASES CITED. 
 
 Page 
 
 'fliorp V. Goodall - 361. 363 
 
 , Watts V. - 763, 764' 
 
 Thorpe, Ex parte - 808. 898 
 Thoroughgood, Lechmere v. 4-90. 
 
 746 
 Thrustout, Jones v. 
 Thwaites, Ex parte 
 . , Wood V. 
 
 Till, Hooper v. 
 Timbrell, Ex parte 
 
 V. Mills 
 
 Tindal v. Brown 
 Tingconibe, Studdy v. 
 Tinker, Stuart v. 
 Tinney, Bell v. 
 Tinson v. Francis 
 Titley, Ex parte 
 
 TItner, Ex parte 
 Tobin, Ex parte 
 Todd, Ex parte 
 
 V. Maxfield 
 
 . V. Read 
 
 Toleraan v. Jones 
 Tontilin's case 
 Tomlinson, Ex parte 
 , Chippendale u 
 
 Clark 
 Wilkes 
 
 • 862 
 
 • 119 
 41.57 
 
 • 881 
 17 
 
 ■ 750 
 243 
 215 
 360 
 
 - 780 
 
 - 252 
 588. 839. 868. 
 
 899 
 
 - 19. 172 
 
 131, 132. 583 
 
 240. 275. 418 
 
 602.611.620 
 
 - 717 
 
 - 1004 
 
 - 526 
 325. 865 
 
 551. 
 555 
 891 
 802 
 623 
 
 Tompkins, Beauchamp v. 
 Tompkinson, Ex parte 531. 836 
 Toms V. Mytton - - 95 
 
 Tooke V. HoUingworth 427. 429 
 Tootell, Ex parte - 245 
 
 Topham, Ex parte - 199 
 
 Touchett, Fisher v. - 687 
 
 Toulmin, Hammond v. - 284 
 Toussaint v. Hartop - 407 
 
 . V. Martinnant 256. 290 
 
 Tower v. Cameron - 614 
 
 Towers, Miller v. - 893, 894 
 Towgood, Ex parte 198. 432. 709 
 , ., Hankey xj. 31. 133. 829. 
 
 831 
 Townendu. Downing 187.292. 792 
 Townrow v. Benson - 721 
 
 Townsend, Ex parte 338. 343, 344 
 
 Trap, Ex parte 
 Travers, Hodgkinson v. 
 
 — , Spear v. 
 
 Treacher, Ex parte 
 Tredgold, Atkins v. 
 Treves v. Townsend 
 Trew, Ex parte 
 Tribe v. Webber 
 Trigg, Newton u. 
 Trigwell, Ex parte 
 Trinity House v. Clarke 
 
 Page 
 546 
 131 
 
 - 413. 461 
 75.154.869 
 
 - 242 
 498. 500 
 
 - 202. 856 
 
 - 78 
 
 - 25 
 
 - 829 
 
 - 486 
 
 Tripp, Longman v 
 Jones V. 
 
 Tritton, Arbouin u. 
 Trotter, Davis u. 
 Troughton, Ex parte 
 
 v. Gitley 
 
 Trueman v. Fenton 
 Trustrum, Ex parte 
 Tuchin, Bartlett v. 
 Tucker v. Cosh 
 
 V. Jones 
 
 , Pulling V. 
 
 Rex X). 
 
 Tudway v. Bourne 
 Tulley V. Sparkes 
 Tapper, Ex parte 
 Turner, Ex parte 
 
 , Brown >o. 
 
 — , Chapman v. 
 
 V. Hayne 
 
 V. Richardson 
 
 V. Schomberg 
 
 V. Townsend 
 
 389. 405. 416 
 
 - 1006 
 
 - 706 
 515. 537 
 
 - 199 
 
 - 424 
 617. 625 
 826. 843 
 333. 833 
 365. 375 
 
 - 53 
 • 41. 73 
 
 - 301 
 385. 579 
 215. 732 
 
 12, 224 
 
 - 256 
 
 - 252 
 
 - 487 
 
 - 832 
 
 - 395 
 
 - 627 
 
 - 338 
 
 Turton, Port u. 27. 30. 36, 37 
 Twiss V. Massey - 123. 608 
 
 Tvvogood v. Swanston - 549 
 Twort v. Dayrell - - 871 
 Twyne's case - - 407 
 
 Tyrrell v. Hope 320, 321. 371 
 
 U 
 
 Unwin V, Oliver - 73. 437 
 
 Upham, Ex parte ^ 132.134 
 
 Upton, Ex parte - - 88 
 
 Usher, Ex parte - - 494 
 
 Usherwood, Inglis v. • 456 
 
 Utterson r. Mair - - 729
 
 INDEX OF THE CASES CITED. 
 
 IxvH 
 
 Page 
 Utterson v. Vernon 177. SM. 280. 
 
 282 
 Uxbridge, Earl of, Ex parte 878 
 
 Vale, Robinson v. 197. 277. 281 
 Valentine v. Hawkins - 900 
 
 V. Vaughan - 35 
 
 Vallejo V. Wheeler - 4-86 
 
 Vanacre, Spencer v. - 689 
 
 Vandenanker v. Desborough 356. 
 
 377 
 Vandeput, Wiseman v. 450, 451 
 Vanderheyden v. De Paiba 255. 
 
 291 
 
 177. 
 
 291 
 
 - 211 
 187. 255. 
 293. 597 
 
 - 244 
 553. 866 
 
 39. 41 
 
 - 48 
 
 - 743 
 56. 59. 769 
 
 - 790 
 
 - 740 
 - 26. 29 
 
 - 732 
 35 
 
 Goddard v 
 
 Vanderzee v, Willis 
 Vansandau v. Crosbie 
 
 Vare v. Lewis 
 Vaughan, Ex parte - 
 
 ., Alexander v 
 
 ' , Barnard v. 
 
 , De Cosson v 
 
 , Dudley v. 
 
 V. Martin 
 
 , Page V. 
 
 , Patman v. 
 
 , Read v. 
 
 , Valentine v. 
 
 , Whitehead v. 478. 482. 
 
 705. 716 
 Vauxhall Bridge Company, 
 
 Ex parte 
 Vere, Ex parte 
 Verner, Ex parte 
 Vernon v. Hall 
 V. Hankey 
 
 V. Hanson 
 , Utterson tJ. 
 
 Vertue v. Jewell 
 Vigers v. Aldrich 
 Vincent, Ex parte 
 
 — , Bailey v. 
 
 t). Brady 
 
 202. 403. 856 
 
 - 298 
 218. 837. 854 
 
 - 675 
 46. 677. 718. 
 
 748 
 
 - 734 
 177.214.280. 
 
 282 
 
 - 457. 465 
 
 - 100. 832 
 
 - 845 
 - 11.561 
 
 - 622 
 
 Vincent v. Hurlock 
 
 V. Prater 
 
 Viner v. Cadell 31. 38. 
 Holmer v. 
 
 Vogel, Ex parte 156, 157 
 Von Hulle, Ex parte 
 Vulliamy v. Noble 
 Vyner, Berney v. 
 Vypond, Ex parte 
 Vysar, Wilson v. 
 
 W 
 
 Wace, Schondler v. - 364. 
 
 , Watson V. - 553. 
 
 Wackerbath, Ex parte 
 — V. Powell 
 
 Pago 
 
 - 246 
 
 - 51 
 
 417. 438 
 
 - 299 
 .533.652 
 
 - 298 
 435. 722 
 
 - 74 
 
 - 825 
 210. 245 
 
 Wadham v. Marlowe 
 WagstafFe, Ex parte 
 
 V. Reed 
 
 Wain V. Warlters 
 Wainman, Ex parte - 
 Wainwright, Holmes v. 
 — , Smith V. 
 
 328. 
 340. 
 
 706. 
 
 761. 
 135, 
 
 Wait, re 
 Wakefield Bank, Ex parte 
 Saunders v. 
 
 Wakeman, Laroche v. 
 Walcot V. Hall 
 Walker, Ex parte (C. B. L.) 
 451. 
 
 (1 Rose) 
 
 (4Ves.)259 
 - 276. 
 
 - V. Barnes 
 
 - V. Birch 
 
 - V. Burnell 
 
 - V. Burrows 
 -, Campbell v, 
 -, De Tastet v. 
 ", Gardner v. 
 
 - V. Giblett 
 
 -, Harrison v. 
 
 - V. Laing 
 
 -, Langden v. 
 
 - V. Liscarry 
 -, Paynton v. 
 -, Zinck V. 
 
 425.7 
 
 601. 
 
 734, 7 
 
 230. 
 
 Walker's case (1 G. & J.) 524. 
 d 2 
 
 390 
 
 784 
 253 
 339, 
 506 
 599 
 720 
 687 
 289 
 773 
 136 
 870 
 634 
 431 
 289 
 555 
 225 
 35. 
 878 
 660 
 .290 
 278 
 480 
 783 
 366 
 334 
 616 
 375 
 621 
 321 
 735 
 795 
 608 
 713 
 429 
 527
 
 IXVlll 
 
 INDEX OF THE CASES CITED. 
 
 Wall V. Atkinson 
 Wallace, Ex parte 
 
 V. Breeds 
 
 V. Hardacre 
 
 , Nerot V. 
 
 Page 
 196. 539 
 252. 310 
 - 454 
 248. 423 
 516. 518. 570 
 Waller, Lowe v. - - 302 
 Walley v. Montgomery - 451 
 Wallinger, Swayne v. - 98 
 
 Wallis, Ex parte - - 1005 
 
 , Jolley V. - - 63 
 
 Waloby, Williams v. • 324 
 
 Walsey, Audley v. - 349 
 
 Walsh, Busk V. - - 308 
 
 , Holmes v. - - 182 
 
 Walter, Duncomb v. - 77 
 
 V. Haynes - - 243 
 
 V. Sherlock 275. 281 
 
 Walton, Ex parte 254, 255 
 
 Walwyn v. St. Quintin 243 
 
 Ward, Ex parte 108. 117. 147- 
 
 183. 189. 866. 899 
 
 - 858 
 
 - 1004 
 
 - 233. 687 
 95. 728 
 
 - 452 
 
 - 875 
 
 - 687. 697 
 901 
 
 551.555.557. 
 861 
 
 - 199. 270 
 15 
 
 190 
 
 - 434 
 
 - 270 
 
 - 400 
 
 - 205 
 47. 125. 320 
 
 - 390 
 Warren, Ex parte 13. 24. 137. 
 
 832 
 614 
 601 
 202. 857 
 
 — V. Abrahams 
 — , Austen v. 
 — , Barwell v. 
 — , De GoUs V. 
 - — V. Hunt 
 
 — V. Kepple 
 — , Read v. 
 
 , Robinson u 
 
 , Webb V. 
 
 Wardell, Ex parte 
 Wardenburgh, Ex parte 
 Warder, Ex parte 
 Waring, Ex parte 
 
 V. Cunlifie 
 
 , V. Knight 
 
 Warner, Ex parte 
 
 . V. Barber 
 
 . , Goring V. 
 
 , , Gowland v. 
 
 , St. Martin v. 
 
 Warry, Ex parte 
 Warwick, Ex parte 19. 397. 578. 
 
 850 
 Washington, White v. 900 
 
 Page 
 Waters, Billings v. 102. 173 
 
 Waterhouse, Close v. - 483 
 
 Watkins v. Birch - 64. 408 
 
 V. Flanagan 233 
 
 i;. Maule - 249 
 
 V. Maund 114. 696 
 
 Watkinson v. Bernardiston 484,485 
 
 Watson, Ex parte (Buck.) 177. 
 
 668, 669, 670. 
 
 (1 C. B. L.) 
 
 163. 325. 865 
 
 (16 Ves.) 21. 
 
 805. 
 
 (2V.&B.)644. 
 
 657 
 454. 466 
 
 - 372 
 605, 606 
 
 - 896 
 553. 784 
 
 Wattleworth, Smith v. 889 
 
 Watts, Ex parte 342. 836. 855 
 
 , Brown v. 90. 210. 245 
 
 , Devon v. - 65. 72 
 
 — V. Hart - - 278 
 
 Newland v. - 351 
 
 - 736 
 763, 764 
 
 Waugh V. Austin - - 753 
 
 Weatherall v. Geering - 368 
 Webb, Ex parte - - 229 
 
 , Beard v. - - 21 
 
 , Edmonstone v. 570. 595 
 
 , Hawes v. 
 V. Mascall 
 V. Renton 
 
 , Steventon v. 
 V. Wace 
 
 , Soame v. 
 
 V. Thorpe 
 
 , Ford V. 
 
 V. Fox 
 , Lingard v. 
 
 V. Pritchett 
 
 889. 
 552. 
 
 210. 
 
 , Ruff v. 
 
 , Shove V. - 
 
 V. Stone 
 
 V. Ward 551. 555. 551 
 
 Webber, Tribe v. - 
 Webster v. Scoles 
 Weeley, Sutton v. - 30. 
 Weightman, Lyndsay v. 
 Weinholt v. Roberts 
 Welch V. Myers 
 Weldon v. Gould - 
 
 902 
 555 
 751 
 892 
 245 
 230 
 886 
 861 
 78 
 712 
 766 
 626 
 715 
 394 
 484
 
 INDEX OF THE CASES CITED. 
 
 Ixix 
 
 Weldon, Lyon v. 
 Wells V. Girling - 
 
 , Parker v. 
 
 , Wills V. 
 
 Welsh, Beck v. 
 
 V. Welsh 
 
 Wenslay, Ex parte 
 West V. Pryce 
 V. Skipp 
 
 - 425 
 
 - 443 
 30.37 
 
 - 736 
 
 - 357 
 
 - 233 
 
 - 660 
 
 - 1004 
 417. 425 
 
 - 886 
 
 Westall, Ex parte 
 
 Westcott V. Hodges 293, 294. 616 
 
 Western Canal Company, 
 
 Gervis v. - - 775 
 
 Westmore, Chase v. - 478 
 
 Weston, Ex parte - - 588 
 
 V. Poole - - 887 
 
 Wetherell, Ex parte 198. 202. 
 204. 357 
 Whally, Ex parte - - 69 
 
 Wharen v. Routledge - 31 
 
 Wharton, Brandram v. - 242 
 Wheatley, Ex parte - 656 
 
 Wheeler, re - - 502 
 
 V. Braraah - 396 
 
 V. Malin - 752 
 
 , Taylor v. - 358 
 
 • , Vallejo V. • 486 
 
 Wheelwright v. Jackson - 448 
 Whichcote v. Lawrence - 334 
 Whiffin, Chilton v. - 155. 291 
 Whitbread, Ex parte 206, 207 
 Whitchurch, Ex parte 499. 578. 
 727. 848. 880 
 Whitcomb v. Jacob - 427 
 
 V. Minchin 753. 859 
 
 White, Ex parte 55. 87. 501. 504. 
 
 511 
 
 Page 
 Whitehead, Austin v. - 495 
 
 , Holroyd v. 45. 48. 769 
 
 v. Vaughan 478. 482. 
 
 , Beeston v. 
 V. Foljambe 
 V. Gainer 
 
 , Gruggen v. 
 
 , Hart V. 
 V. Milner 
 
 - 276 
 
 - 333 
 
 - 479 
 
 - 900 
 871. 874 
 
 - 886 
 
 - 645 
 
 , Reed v. - - 
 
 ■ V. Royal Exchange 
 
 Assurance - - 875 
 
 V. Washington - 900 
 
 V. Wilks - - 454 
 
 Whitehead, Ex parte - 229 
 
 Whitehouse v. Frost 
 Whiteside, Ex parte 
 Whitfield, Ex parte 
 V. James 
 
 705 
 
 716 
 
 - 454 
 
 - 505 
 12. 224 
 
 - 887 
 
 - 699 
 
 - 601 
 
 - 247 
 
 Whittaker, Ex parte 
 Whittenbury, Miller v. 
 Whitter, Ex parte 
 Whittingham v. De la Riese 607 
 Whittington, Ex parte 398. 817 
 
 , Scrace v. - 902 
 
 Whittle, re - - 998 
 
 Whitwell, Ex parte - 505 
 
 Dimsdale - 63. 772 
 
 V. Thompson 63. 65. 72. 
 
 75. 632. 641 
 Whitworth v. Davis 369. 561.728 
 
 V. Graham - 787 
 
 608 
 623 
 
 Wickes V. Strahan 
 Wicket V. Cremer 
 Wickwar Friendly Society, 
 
 Ex parte 
 Wigan, Berks v. - - 
 
 Wiggins, Howis v. 
 Wilbean, Ex parte 
 Wilcox, Kruger v. 
 Wild V. Crawford 
 Wildbore v. Bryan 
 
 300 
 
 - 760 
 250. 254. 291 
 
 - 809 
 
 - 477. 479 
 
 - 882 
 
 - 884 
 
 Wildman, Ex parte 235. 241. 286 
 
 V. Wildman 
 Wilkes, Tomlinson v. 
 
 , Wyllie V. 
 
 V. Jacks 
 
 Wilkins v. Carmichael 
 
 Casey 
 Fry 
 
 377 
 
 - 802 
 
 - 228 
 
 - 243 
 484, 485, 
 
 486 
 677. 681 
 334. 728 
 
 Wilkinson, Ex parte 139. 184. 326 
 339. 451. 816.838 
 
 — V. Diggell 
 — , Gordon v. 
 — , Laroche v. 
 — , Norris v. 
 
 — V. Robinson 
 
 — V. Wilkinson 
 
 — V. Wyatt 
 
 - 889 
 
 - 79 
 
 - 551 
 
 - 203 
 
 - 645 
 124. 392 
 
 - 793
 
 but 
 
 INDEX OF THE CASES CITED. 
 
 Page 
 Wilks V. Bodington - 687 
 
 , Sheriff u. - - 644 
 
 , White V. ' - 454 
 
 Willan V. Geordini - 616 
 
 Willats V. Cay - - 374 
 
 Willett, Burdett v. - 427 
 
 , V. Pringle - 274. 596 
 
 Williams, Ex parte{Buck.) 656. 663 
 (1 Rose) 263. 
 
 549 
 
 (2 V. & B.) 
 
 113. 829. 882 
 
 .^ (11 Ves.) 639 
 
 , , Abery v. - 687 
 
 . , Arbouin v. 412. 416 
 
 , V. Barber - 892 
 
 . ., Brown V. - 687 
 
 V. Dyde - 624 
 
 V. Frith - - 892 
 
 , Jacobson v. 148. 372 
 
 , Kinder v. 144. 161. 542. 
 
 751 
 
 . , Lloyd V. - 374 
 
 , Miles V. 177. 376. 617 
 
 V. Nunn 
 V. Odell 
 
 , Paris V. 
 
 , Rabone v. 
 
 , Shew V. 
 V. Stevens 
 V. Waloby 
 
 - 39. 48 
 
 - 883 
 
 - 755 
 428. 717 
 
 - 42 
 25. 799 
 
 - 324 
 
 Williamson, Ex parte (1 Atk.) 39. 
 196. 574. 577. 580, 581 
 ;Buck.) 828 
 
 . Higden u. 
 
 Willingham v. Joyce 
 Willis, Curteis v. 
 
 1). Freeman 
 
 V. Lugg 
 
 Vanderzee v. 
 
 Willock, Ex parte 
 u. Smith 
 
 Wills V. Sayers 
 
 V. Wells 
 
 Wilmer, Rigg v. 
 Wilmshurst, Ex parte - 
 Wilsmore, Nunn v. 
 Wilson, Ex parte (1 Atk.) 22. 24. 
 114. 123. 183. 540. 803. 808 
 
 364 
 
 - 368 
 
 - 57 
 423. 679 
 
 - 357 
 
 - 211 
 650. 669 
 
 - 760 
 
 - 378 
 
 - 736 
 
 - 739 
 - 8. 855 
 
 - 65 
 
 Page 
 
 Wilson, Ex parte (Buck.) 103. 131. 
 418. 879 
 
 (C. B.L.) 344 
 
 (I Rose) 271. 
 
 295. 358. 837 
 (11 Ves.) 243 
 
 V. Balfour - - 445 
 
 , Boot V. - - 598 
 
 V. Day - - 65. 67 
 
 Eckhardt v. 70. 631. 744 
 
 - 391 
 
 - 882 
 
 - 395 
 516. 786 
 617. 627 
 
 - 791 
 48, 49. 60 
 
 734. 789 
 210. 245 
 840. 843 
 
 - 303 
 437. 557 
 
 - 374 
 
 - 216 
 
 - 893 
 46, 47. 89. 
 
 683 
 
 677 
 
 732 
 
 487, 488 
 
 - 99 
 231. 236 
 882. 894 
 
 V. Greenwood 
 
 V. Gutheridge 
 
 V. Hastings 
 
 , Janson v. 
 
 ■ V. Kemp 
 
 V. Legge 
 
 V. Norman 
 
 V. Poulter 
 
 V. Vysar 
 
 Wiltshire, Ex parte - 
 Winch, q. t. v. Fenn 
 V. Keeley, 
 
 V. Page 
 
 Winchester, Ex parte 
 Winder, Martin v. 
 Windham v. Paterson 
 
 Winnington, Holmes v 
 Winter v. Kretchman 
 
 • V. Lord Anson 
 
 , Master v. 
 
 V. Mouseley 
 
 V. Payne 
 
 Winterton, Lord, Tew v. 269. 272 
 Winwood, Ex parte - 139 
 
 Wisdom, Clarke v. - - 25 
 Wise, Berryman v. - 893 
 
 , Mercer v. - - 554 
 
 Wise's case - - - 217 
 
 Wiseman x,. Vandeput 450, 451 
 
 [ Witham, Sharpe V. - - 615 
 
 ! Withers, Bryant v. 96. 109. 190. 
 
 i 773 
 
 I Withy, Jaques v. - 100. 832 
 
 ' Wollaston, Collett v. - 728 
 
 Wood, Ex parte (1 Atk.) 109. 193. 
 
 510,511.816 
 
 , in re (I Rose) 140. 142.509. 
 
 536
 
 INDEX OF THE CASES CITED. 
 
 Ixxi 
 
 Wood V. Akers 
 V. Dodgson 
 
 , Jackson re 
 
 , Jeffs V. 
 
 , Stevenson v. 
 
 , Thackrah v. 
 
 V. Thwaites 
 
 V. Wood 
 
 Page 
 
 - 714 
 
 297. 597. 617. 
 668 
 
 - 897 
 
 - 711 
 444. 678 
 
 - 95 
 ' 41.57 
 
 - 414 
 Woodbridge, Heskuyson v. ^55. 
 
 291 
 Woodham, Bedford v. 226. 439 
 Woodier's case - - 45 
 
 Woodmass, Gill v. - - 794 
 Woods, Ex parte - - 538 
 
 V. Russell 420. 476. 484 
 
 Woollcot, Butler v. - - 460 
 
 V. Leicester 602. 622 
 
 Woolley, Ex parte 147. 155. 159. 
 184. 189. 315 
 
 V. Cobbe 
 
 Woolloton, Jarman v. 
 Wordall v. Sjiiith 
 Worrall, Ex parte 
 
 V. Jacobs 
 
 u. Marlar 
 
 Worsley v. De Mattos 
 Worswick, Sill v. 399; 
 Worthington, Ex parte 
 
 , Edge V. 
 
 Wride, Ex parte - 
 Wright, Ex parte (1 G.& J. 
 
 (2 Rose) 
 
 (2 Ves.) - 
 
 — (19 Ves.) 
 
 u. Bird 
 
 V. Campbell 
 
 V. Castle 
 , Coles V. 
 , Freme v. 
 
 V. Hunter 
 
 V. Lawes 
 , Leeds v. 
 
 - 601 
 
 - 379 
 64. 406 
 
 - 240 
 
 - 376 
 372, 373 
 
 66. 406 
 400. 402 
 
 - 655 
 
 - 203 
 
 - 1005 
 588 
 336 
 855 
 
 230. 
 837 
 
 - 33 
 463. 465 
 
 - 900 
 
 - 681 
 
 - 333 
 282. 613. 636. 
 
 667 
 
 - 453 
 
 - 452 
 
 Wright, Moore v. 
 
 V. Morley 
 
 Young V. 
 
 Wyatt V. Blades 
 
 , Cooper V. 
 
 V. Wilkinson 
 
 52, 
 
 Wyborne v. Ross 
 Wy down's case, 41. 48. 79. 
 114. 136.491.682. 
 Wyraondsell, South Sea 
 
 Company u, - 
 Wylie, Ex parte - 651 
 
 , Bryson v. - 404. 408 
 
 Wyllie V. Wilkes - - 228 
 Wynne v. Raikes - - 246 
 
 Page 
 719 
 373 
 741 
 747 
 391 
 793 
 611 
 110. 
 773. 
 
 742 
 669 
 
 Yale, Ex parte 
 Yallop, Ex parte 
 Yarker v. Botham 
 Yalden, Pitt v. 
 Yates V. Railstone 
 Yea V. Frere 
 
 , Hammersley u. 
 
 Yeates v. Grove 
 Yeo V. Allen 
 Yonge, Ex parte 
 Young, Ex parte (Buck.) 
 (C. B. L.) 
 
 - 608 
 
 - - 642 
 162. 328. 849 
 
 - 901 
 
 - 487 
 
 - 886 
 
 - 303 
 • 446 
 
 - 622 
 666 
 218 
 195 
 
 (3 Madd.) 219 
 (2 Rose) 667, 668 
 (2V.&B.) 487 
 
 - 680. 686 
 
 - 188 
 255. 291 
 
 - 652 
 
 - 765 
 239. 396. 598, 
 
 599 
 Wright - 52: 741 
 
 , Cash V 
 V. Glass 
 V. Hockley 
 V. Hunter 
 V. Smith - 
 
 , Taylor v. 
 
 Zagury V. Furnell - - 454 
 
 Zinck V. Walker - - 429 
 Zvvinger v. Samuda - - 453
 
 INTRODUCTION. 
 
 1 HE word Bankrupt, we are told by Mr. Justice Black- Deriv- 
 
 stone ( 1 ), is derived from the word hancus, or hanque. which ^,^'°" , 
 ,11 c 1 1 ^^^ word, 
 
 means the table or counter or a tradesman, and ruptus, 
 
 broken, denoting thereby one whose shop or place is broken 
 and gone: whilst Sir Edward Coke (2) somewhat more 
 quaintly, and certainly with greater metaphor, prefers the 
 derivation of it from the two French words banque and 
 route; which last word, he informs us, means " a sijrn or 
 " mark, as we say a cart-rout, which is the sign or mark 
 " where the cart hath gone; so, metaphorically, it is taken 
 " for him that hath wasted his estate, and removed his 
 " banque, so as there is left but a mention thereof." The 
 origin of the word, however, unless it is to gratify the 
 curiosity of the etymologist, does not seem to be very ma- 
 terial to the present inquiry, when the meaning of it has 
 been so copiously defined, as well by the numerous decisions 
 of our courts of justice, as by the recent act of the legislature, 
 that forms the subject of the present treatise. Though, if 
 there be a choice to be made between these two learned 
 authors, it must be confessed, that the first derivation ap- 
 pears the more simple and appropriate. It accords, too, 
 with the custom which formerly prevailed among the 
 bankers in the towns of Italy, who used to carry on their 
 business in the public places seated on forms, with benches 
 to count their cash, and of whom if any one became insol- 
 vent, his bench was broken, either as a mark of infamy, or to 
 put another in its place. (3) 
 
 (1) 2Comm.471. (5) Dufresne, 1. 969. Bcavves, 
 
 (2) 4 Inst. 277. 322. In favour of Sir Edward
 
 li. 8. C. 4. 
 
 INTRODUCTION. 
 
 A Bankrupt by our old law was considered in the ligbt ' 
 54&3.'5 merely of a criminal or offender; the 34 & 35 H- 8. c.4. 
 (which was the first statute passed concerning them) describ- 
 ing Bankrupts as " persons craftily obtaining into their 
 " hands great substance of other men's goods, who suddenly 
 " flee to parts unknown, or keep their houses, not minding 
 " to pay or restore to any creditors their debts and duties, 
 " but at their own wills and pleasures consume the sub- 
 " stance obtained by credit of other men, for their own 
 " pleasure and delicate living, against all reason, equity, and 
 " good conscience." (1) But now the law of Bankruptcy is 
 considered principally with a view to the benefit of trade, 
 and instead of treating the Bankrupt as a criminal, holds 
 out to him relief and protection against the consequences of 
 his imprudence or misfortune, provided he acts but honestly 
 with his creditors, and gives up all his effects to their use 
 without any fraudulent concealment. 
 
 The law of England, says Mr. Justice Blackstone, in 
 this respect has steered between the two extremes of the 
 old Roman, and the civil law; by the former of which the 
 debtor might be either imprisoned in chains, and subjected 
 to stripes and hard labour at the mercy of his creditor, or 
 sold with his wife and children to perpetual foreign slavery 
 trans Tiherim ; and by the latter (so opposite was the spirit 
 of the two laws), the debtor could not even be compelled 
 
 Coke's derivation, however, it is realm without having come to any 
 but fair to remark, that the title of agreement with them. Neither do 
 the first Enghsh statute relating to we find, he adds, any complaint in 
 the subject (54 & 35 H. 8. c. 4,) was parliament, or act of parliament 
 " against such as do make bank- raade,against any English bankrupt, 
 rupt," which is a literal translation until the 34 H. 8., " when the En- 
 of the French idiom, " qui font "glish merchant had rioted in three 
 " banque route." " kinds of costlinesses, viz. costly 
 (l) The original statute that " building, costly diet, and costly 
 was made against bankruptcy as a " apparel, accompanied with neg- 
 crime, (but which does not appear " lect of his trade and servants, 
 in our statute book,) Sir Edward "andtherebyconsumedhis wealth." 
 Coke says(4lnst. 277.), was against One would really imagine, that the 
 the Lombards, who, after they had learned commentator had been de- 
 made obligations to their credi- scribing some transactions in the 
 tors, suddenly escaped out of the nineteenth century.
 
 INTRODUCTION. 
 
 to cede or give up what property he had in his possession, 
 if he would onlj' swear that he had not sufficient left to pay 
 his debts. (I) The law of this country provides equally 
 against the inhumanity of the creditor and the fraud of the 
 debtor, and adopts in a great measure the principle of the 
 law of the cessio bonorum introduced by the Christian 
 emperors ; whereby, if a debtor ceded or yielded up all his 
 fortune to his creditors, he was secured from being dragged 
 to prison, " omni quoque corporali cruciatu semoto." (2) The 
 protection of the Bankrupt law is, however, only afforded 
 to actual traders; who are, in general, the only persons 
 liable to accidental losses, and to an inability of paying 
 their debts without any fault of their own. Trade, (in the 
 words of the learned author of the Commentaries,) cannot 
 be carried on without mutual credit on both sides; the 
 contracting of debts is, therefore, not only justifiable but 
 necessary. And if by accidental calamities, as by the loss 
 of a ship in a tempest, the failure of brother-traders, or 
 by the non-payment of persons out of trade, a merchant 
 or trader becomes incapable of discharging his own debts, 
 it is his misfortune, and not his fault. To the misfortune, 
 therefore, of debtors, the law has given a compassionate 
 remedy, but denied it to their faults : since, at the same 
 time that it provides for the security of commerce, by 
 enacting that every trader may be declared a bankrupt, 
 for the benefit of his creditors as well as himself, — it has 
 also, to discourage extravagance, declared, that no one 
 shall be capable of being made a bankrupt but only a 
 trader ; nor capable of receiving the full benefit of its pro- 
 visions, but only an industrious trader. 
 
 In treating of the law, as it now stands, regarding Bank- 
 rupts, there seems to be no necessity for enumerating the 
 various acts of parliament which have been from time to 
 time passed respecting them, all of which were lately more 
 or less in operation before the recent statute began to take 
 
 (1) Inst. 4. 6. 40. Nov.135. c. 1. (2) Cod. 7.71. 
 
 B 2
 
 INTRODUCTION. 
 
 effect. They are no less than twenty-one in number, and 
 are now all repealed by the first section of the new statute, 
 beginning with the 34< & S5 H. 8. c. 4., and ending with 
 the 5 G. 4. c. 98. The alterations made by that statute 
 in the law of Bankruptcy are very considerable, embracing 
 almost every branch and division of the former Bankrupt 
 law. The persons liable to become Bankrupt are increased 
 in number, and are more particularly defined ; new modes 
 of committing an act of bankruptcy are specified ; more 
 ample powers are given to the Lord Chancellor for the 
 better working or superseding the commission, and for 
 saving expence and delay to all the parties who have an 
 interest in the Bankrupt's property; and more authority is 
 given to the commissioners, both with respect to the Bank- 
 rupt, as well as over other persons whom it may be ne- 
 cessary to examine touching the act of bankruptcy, and 
 the discovery of the Bankrupt's property. These, and 
 various other alterations, will be pointed out in the follow- 
 ing pages, accwding to the order in which the different 
 subject-matters are successively disposed of.
 
 CHAPTER I. 
 
 OF THE JURISDICTION OF THE LORD CHANCELLOR, 
 
 1. Over the Parties to, or those who come in under, the 
 
 Commission. 
 
 2. Over those who are Strangers to the Commission. 
 
 Section I. 
 
 Over the Parties to, or those who come in under, the 
 Commission. 
 
 With respect to the nature and origin of the Lord Nature 
 Chancellor's jurisdiction in bankruptcy, the matter does oftheTuris- 
 not appear to be involved in quite so much obscurity and diction, 
 mystery as a learned writer on the subject has alleged to 
 be the case. (1) The first statute that gave him any juris- 
 diction was the 34 & 35 H. 8. c. 4., which gave also equal 
 authority to the Lord Treasurer, and other great officers 
 of state ; any one of whom, together with two members of 
 the Privy Council, or the two Chief Justices of either 
 bench, might take such order and direction, as well with 
 the body as the property of the bankrupt, as to their wisdom 
 or discretion might seem fit. But ever since the 13 Eliz. 
 c. 7., which conferred upon the Lord Chancellor or Lord 
 Keeper of the Great Seal the exclusive authority to issue 
 a commissioji of bankrupt, the great seal appears to have 
 been in the sole and entire possession of all jurisdiction in 
 matters of bankruptcy, upon which it determines in a sum- 
 mary way, and from its decision there is no appeal. (2) 
 The twelfth section of the new statute, 6 G. 4. c. 16. (follow- 
 ing the words nearly of the 13 Eliz. c. 7.) also gives the 
 
 (1) 2 Christian's B. L. 6. 816. 1 V. &B. 211, Ex parte ^rj/- 
 
 (2) Ex parte Matthews, 3 Atk. unt, Ex parte Ha//, 1 Rose, 13. 
 
 B 3
 
 JURISDICTION OF THE CHANCELLOR [Ch. 1. 
 
 Lord Chancellor power to issue a commission to such per- 
 sons as to him shall seem fit, who are to take the same 
 order and direction, both with the bankrupt's person and 
 estate, as is specified in the former statute ; and by Sec- 
 tion 135., if there is no Lord Chancellor, then all powers 
 and duties, given to and directed to be performed by him, 
 are in that case to be performed and exercised by the 
 Lord Keeper, or Lords Commissioners, of the Great Seal. 
 To every person (says Sir W. Evans, in his Letter to 
 Sir Samuel Romilly on the Revision of the Bankrupt 
 Laws(l),) who compares the very few provisions in the 
 statute book respecting this extensive jurisdiction, with the 
 numerous cases in the books of reports upon the exercise 
 of it ; who compares the terms in which the authority is 
 given, with the extent to which it is carried; — it must be 
 an obvious remark, — that never, upon so narrow a basis, 
 was there erected so large a superstructure of authority, 
 undefined, exclusive, and without appeal. But a consider- 
 able part of this authority, as well, indeed, as of the present 
 jurisdiction exercised by courts of equity in a variety of sub- 
 jects, may be traced (as that learned writer observes) to the 
 principle, that every court is conclusively the judge of its 
 own contempts ; and, therefore, when any authority is as- 
 sumed, and the disobedience of it is treated as matter of 
 contempt, the consequence is, an indirect power of legis- 
 lation, which no other tribunal is competent to control. 
 This principle, however, which in its nature is so very 
 susceptible of abuse, has been in general applied to bene- 
 ficial purposes; and the Chancellor's jurisdiction in bank- 
 ruptcy appears now to have been fully recognised by re- 
 peated acts of the legislature, as well as by a long series of 
 judicial decisions. (2) 
 
 (1) Page 182. indirect control which he pos- 
 
 (2) Mr. Christian (vol. ii. 212. sesses over the commissioners, by 
 226.) refers great part of the means of his patronage, and his 
 Chancellor's jurisdiction in bank- power of refusing to insert their 
 ruptcy to the mere influence of re- names in other commissions: this 
 commendation and advice, and the the learned author consequently
 
 Sect. 1.] OVER THE PARTIES. ^ 
 
 It has been remarked by Lord Eldon, in some of those Bankrupt 
 
 ablejudgments (1), which form now a complete code in this ^^^^ ham- 
 
 branch of our law, that the different statutes relating to viewto^ the 
 
 bankrupts seem to have been framed, with a view to the ordinary 
 
 authority with which the Lord Chancellor is entrusted in I"" r"i 
 •' " tion oi the 
 
 the exercise of his ordinary jurisdiction ; and that when Chancel- 
 those statutes were silent, as to the mode of compelliiur ^'^' 
 obedience to the orders that might be necessary for car- 
 rying their provisions into effect, the practice has been to 
 enforce it by the general jurisdiction of the Court of 
 Chancery, without which the objects of a commission of 
 bankrupt could not in many cases be thoroughly attained ," 
 and this practice, the same noble and learned Judge has 
 declared it to be his conviction, was perfectly consistent 
 with the intention of the legislature, in giving the juris- 
 diction it has done to the Chancellor in Bankruptcy. In- 
 deed, it has been laid down in many cases, that an order 
 of the Lord Chancellor in Bankruptcy is analogous, though 
 not equal, to a decree of the Court of Chancery. (2) 
 
 This summary jurisdiction of the Lord Chancellor is, Confined 
 
 however, confined strictly to transactions relating to the ^° trans- 
 
 . •' . . , ° , actions re- 
 
 bankruptcy ; that is to say, to those arismg between the lating to 
 
 hankrupti or the assignees, and the creditors who have come "'^ bank- 
 in under the commission. The Lord Chancellor, therefore, 
 sitting in Bankruptcy, cannot upon petition adjust any de- 
 mands that one assignee may set up against another, con- 
 cerning a private agreement between themselves, and not 
 affecting the rest of the creditors. (3) Neither can he 
 
 infers to be, and designates, as a was clothed with more ample 
 
 recommendatory jurisdiction, as powers by the preceding statute 
 
 distinguished from the mandatory of 34 & 55 H. S., which the sta- 
 
 jurisdiction expressly given by sta- tute of Elizabeth left free and un- 
 
 tute. But though this influence touched. 
 
 might operate in derogation of the (l) 14 Ves. 4.51. Ex parte Brad- 
 
 power of the commissioners, it does ley, 1 Rose, 203, 204. 
 
 not seem so very clear how it could (2) Flower v. Herbert, 2 Ves. 
 
 increase that of the Chancellor, 526, Ex parte Cowan, 5B. &i^. 
 
 who, before he was enabled by the 129. 
 
 1 3 Eliz. c. 7. to delegate a part of (s; Per Lord Hardwicke in mat- 
 
 his authority to the commissioners, ter o{ Earl of Litchfield, l Atk. 88. 
 
 B 1
 
 JURISDICTION OF THE CHANCELLOR [Ch. 1 . 
 
 But any 
 thing ne- 
 cessary to 
 the ques- 
 tion of 
 proof, 
 gives him 
 jurisdic- 
 tion. 
 
 Power to 
 send a case 
 or direct 
 an issue. 
 
 compel tlie assignees to perform an agreement respecting a 
 distribution of the bankrupt's property under a composition 
 deed. ( I ) And so in recent cases, where certain parties 
 were ordered to pay costs in Bankruptcy, and some of 
 them paid the whole costs, it was held, that the Chancellor 
 had no jurisdiction in bankruptcy to order contrihidion 
 from the rest of the parties, — that being a question alto- 
 gether collateral to the bankruptcy, and the proper subject 
 of an action at law, or a bill in equity for an apportion- 
 ment. (2) And where the bankrupt had deposited with A. 
 the title-deeds of premises which he had previously mort- 
 gaged to R. and Co., and after the bankruptcy it was 
 agreed between R. and Co., A., and the assignees, that the 
 assignees should sell the premises, and apply the proceeds 
 in payment of R. and Co. and A., and the solicitor of the 
 bankrupt claimed alien, on petition, by deposit of the title- 
 deeds prior to A., — it was held, that there was no jurisdiction 
 in Bankruptcy to determine the priority of this lien, as it 
 was a question in which the estate of the bankrupt had no 
 interest ; it being quite immaterial to the general creditors, 
 whether the surplus produce of the property moitgaged 
 was applied to pay the particular debt of A., or the par- 
 ticular debt of the jietitioner : and it was also held in this 
 case, that A. was not precluded from objecting to the juris- 
 diction, by filing affidavits as to the merits. (3) Any thing, 
 however, that is necessary for the Chancellor to decide, in 
 order to the question of proof of debts under the commis- 
 sion, will give him jurisdiction. (4) 
 
 The Lord Chancellor has power also, when difficult 
 questions of law are found to be involved in a petition in 
 Bankruptcy, to send a case for the opinion of a court of 
 Law ; or if a difficult question of fact occurs, then to direct 
 an issue to try any litigated point between the parties, or; 
 
 (1) Ex parte Barfit, 12 Ves. 15. (5) Ex parte Allison, 1 G.& J. 
 
 (2) Ex parte Wilmshurst, 1 G. & 210. 
 
 J. 4. (4) Ex parte Rowton, 1 Rose, 19.
 
 Sect. 1.] OVER THE PARTIES. 9 
 
 an action to be brought by one against the other. (1) So 
 he may in a matter of importance direct a bill in Chancery 
 to be filed, in order to ascertain whether a debt is due or 
 not (2) ; for, though he has no moi'e power on a bill than 
 on a petition, ^et, in some cases, it is better that questions 
 of importance requiring solemn discussion should be brought 
 before the Court by way of bill ; there being an appeal from 
 his decision in this form of proceeding to the House of 
 Lords : and Lord Hardwicke said, it was sometimes neces- 
 sary to adopt that mode to settle the demands of creditors. (3) 
 
 The jurisdiction of the Lord Chancellor in Bankruptcy JuHsdic- 
 
 is both legal and equitable (4) ; but this arises more from tion both 
 , . IIP • 1 • legal and 
 
 long practice, perhaps, than Irom any precise authority on equitable. 
 
 the subject. And his determinations, as it seems, are 
 guided now, not as Lord Hardwicke once said, by way of 
 analogy to the usual and ordinary proceedings of the 
 Court of Chancery (5), but by certain established rules 
 and principles of equity, which have been adopted in pro- 
 ceedings in bankruptcy, and are deduced from the powers 
 that have been from time to time vested in him by the 
 legislature. The whole of the proceedings in Bankruptcy, 
 (observes Lord Eldon, who distinguishes them from the 
 other proceedings of the Court,) begin in transactions upon 
 oath ; the trading, the debt, the act of bankruptcy, and 
 the proceedings before the Chancellor, are always origin- 
 ally on affidavit. It is always in the discretion of the 
 Court, (his Lordship adds,) upon an issue, to direct the 
 petitioning creditor, or the bankrupt, or any other party 
 to the petition, to be or not to be examined ; and if it re- _^ 
 quires the jury to have before them, what the Court had 
 
 (l) Ex parte Co<^re//,Cowp. 742. (4) Ex parte Dewdnet/, 15Ves. 
 
 Ex parte Gw/s^ora, lAtk. 139. 496. Ex parte Hanson, IsVes. 
 
 {2) Clarke v. Capron, 2 Ves. 348, ExparteTZq^ey, 19Ves.469. 
 
 jun. 666. Ex parte Hilton, 1 Jac. & W. 470. 
 
 (3) £romiei/v.Goodere,lAtk.76. (5) Ex parte 3Iathetvs, 3 Atk. 
 
 Hankey y. Garratt, iC. B. L. 2. 817. 
 Curtis v. Ashton, ibiil.
 
 10 
 
 JURISDICTION OF THE CHANCELLOR 
 
 [Ch.l. 
 
 Jurisdic- 
 tion over 
 the com- 
 missioners, 
 to suspend 
 the assign- 
 ment, 
 and re- 
 move as- 
 signees. 
 
 Cannot 
 discharge 
 a bankrupt 
 when com- 
 mitted, on 
 a summary 
 applica- 
 tion. 
 
 Nor com- 
 pel the 
 commis- 
 sioners to 
 find the 
 party a 
 bankrupt. 
 
 Nor re- 
 verse the 
 order of 
 the com- 
 missioners 
 by bill. 
 
 before it, it is usual, in order to elucidate the matter, to 
 direct the parties to be examined. (1) 
 
 The Chancellor has jurisdiction to control the conduct 
 of the commissioners in all matters, where the legislature 
 has fixed no certain time for acts to be done by them ; he 
 has, therefore, power to suspend the execution of the as- 
 signment after assignees have been chosen; and he has 
 also power to remove the persons nominated by the cre- 
 ditors as assignees, even before the assignment is exe- 
 cuted. (2) But though an appeal, generally speaking, lies 
 in all matters of Bankruptcy from the determination of the 
 commissioners to the Lord Chancellor by petition (3), yet 
 if the commissioners commit a bankrupt for not answering 
 to their satisfaction, the Lord Chancellor cannot upon a 
 summary application, sitting in Bankruptcy^ discharge him; 
 but the mode of proceeding must be by habeas corpus, 
 which writ the Chancellor has authority to issue in the 
 vacation time ('4) ; and upon the return to which, the Lord 
 Chancellor, not under the bankrupt law, but as a law 
 officer, will then review the conduct of the commissioners 
 the same as any other Judge. (5) The Chancellor has, 
 also, no authority to compel the commissioners to declare 
 a party a bankrupt; he has only power to order them to 
 proceed in their judgment. (6) And though the Chan- 
 cellor may order a bill to be filed for certain purposes in 
 bankruptcy, yet, upon a bill filed by the assignees against 
 a creditor after a dividend, to have the proof of the debt 
 expunged, the Chancellor cannot, in this mode of pro- 
 ceeding, reverse the order of the commissioners ; for the 
 proper course to do this is, not by a suit in Chancery, but 
 
 (1) Ex parte Heywood, 1 Rose, 
 45.; and see Ex parte Smith, 19 
 Ves. 473. 
 
 (2) Ex parte Skaw, 1 G.&J. 127. 
 (.3) Bromleijv. Goodere, 1 Atk.77. 
 
 (4) Crowleif'a case, Buck. 264. 
 
 (5) Ex parte King, 11 Ves. 425. 
 Lord Hardwicke, however, leaned 
 to a different opinion upon this 
 
 question ; and said, that he re- 
 membered a similar case before 
 Lord Chancellor King hi Bank- 
 ruptcy, who, after he had taken 
 some time to consider of it, de- 
 termined the commitment of the 
 commissioners to be justifiable. 
 Ex parte Lingood, 1 Atk. 242. 
 (6) Ex parte Perrin, Buck, 510.
 
 Sect. 1.] OVER THE PARTIES. 11 
 
 by petition to the Chancellor sitting in Banh'uptcy. ( 1 ) 
 So, where a bill was filed against bankrupts and their as- 
 signees, questioning the validity of the commission, and 
 praying an account, or if the commission was legal, for 
 leave to prove what should appear to be due under the 
 bankruptcy, it was for the same reason held bad on general 
 demurrer. (2) And so also a bill by assignees against a Nor by 
 bankrupt, to restrain him from further proceedings at law ^^ \n\nnc- 
 to impeach the validity of the commission, was held equally tion 
 
 »ntenable.(3) S^pl 
 
 The Lord Chancellor has no jurisdiction to interfere Cannot in- 
 
 in a proceeding before a iudge oi oyer and terminer. He *^"^^^ *" 
 ^ o J Ti u a proceed- 
 
 cannot, therefore, upon a petition in Bankruptcy, order the ing before 
 
 solicitor to the commission to pay costs for not attendinjj ^J"''geof 
 
 * * . . " oyer and 
 
 to give evidence on the trial of an mdictment against the terminer. 
 
 bankrupt, by reason of which the bankrupt was acquitted ; 
 
 the remedy being by indictment or information against the 
 
 solicitor for such neglect of duty. (4) 
 
 Neither has any other court power to review a final order No other 
 
 made by the Lord Chancellor in any matter of Bankruptcy. '^°"'^'' 
 
 And it seems that the Court of King's Bench has no autho- rescind 
 
 ritv to direct a Prohibition to the Chancellor sitting; in ^x:^ , 
 >' . ... Chancel- 
 
 Bankruptcy, though there is no express decision against the lor's order. 
 
 authority of the Court to issue such writ; but as no ques- x^P. P^'^hi- 
 r-ii-i IX \ f>\ • ct • All ^ \ hition hes 
 
 tion of the kmd (as the Lord Chief Justice Abbott observed,) against 
 
 has ever arisen since the institution of proceedings in bank- ^im. 
 
 ruptcy, a period little short of 300 years, it is not a very 
 
 unwarrantable inference, that no such writ of Prohibition 
 
 lies. (5) In one case, indeed, before Lord Redesdale, he 
 
 would not even permit costs awarded in bankruptcy to be 
 
 made the subject of an action at law (6) ; but there is some 
 
 doubt as to the correctness of this decision. (7) 
 
 (1) Clarkev. Capron, 2 Yes. 666. (5) Ex parte Coivaji, 5 B. & A. 
 
 (2) Bailei/ v. Vincent, 5 Mad. 48. 123. 
 
 (3) KirJipatrick v. Denjiett, 1 G. (6) In re Dillon, 1 Sch. & Lef. 
 &J. 500. . 110. 
 
 (4) Ex parte HoUlday, 1 Atk. (7) Per Lord Ellenborough, 2 M. 
 209. ' >!V' S. 459.
 
 12 
 
 JURISDICTION OF THE CHANCELLOR [Ch. 1. 
 
 Lord 
 Chancel- 
 lor no 
 power to 
 appoint a 
 receiver 
 in bank- 
 ruptcy. 
 
 nor to 
 order an 
 infant heir 
 to convey. 
 
 Power to 
 order the 
 mes- 
 senger's 
 and soli- 
 citor's bills 
 to be paid; 
 
 and trans- 
 fer of 
 stock. 
 
 Jurisdic- 
 tion not 
 deter- 
 
 Tlie Lord Chancellor lias no jurisdiction, upon a pe- 
 tition in Bankruptaj, to appoint a receiver of any part of 
 the bankrupt's property ; for, except in the case of idiots 
 and lunatics, he has no such power, unless a cause is 
 depending. If any person, therefore, claims an interest in 
 the bankrupt's property, and wishes to have a receiver 
 appointed, the proper mode is to file a short bill for that 
 purpose. (1) Neither has the Chancellor any jurisdiction 
 in bankruptcy to order an in/ant heir of a deceased as- 
 sif^nee, to convey (as an infant trustee) the estates of the 
 bankrupt vested in him by the decease of his ancestor; for 
 the petition must be to the Chancellor generally, under the 
 statute 7 Ann. c. 19., and not to him as sitting in Bank- 
 ruptcy. (2) 
 
 He has jurisdiction, however, upon a summary applica- 
 tion in Bankruptcy, to order the assignees to ^joy the mes- 
 senger his bill of fees and expences under the commission; 
 and this, notwithstanding even after a final dividend ; for the 
 assignees must be presumed to have known that they were 
 indebted to the messenger, and the distribution of the 
 funds, without having previously paid him, is their own mis- 
 conduct. (3) So, with respect to the solicitor's bill of fees up 
 to the choice of assignees, the Chancellor has in that case 
 also authority, upon petition, to make an order upon the 
 petitioning creditor for the payment of it (4) ; but not in 
 this case, if there are no assets. (5) 
 
 When any stock is standing in the bankrupt's name as 
 trustee, the Lord Chancellor has, by the 77th section of 
 the new act, power to order the assignees, or any other 
 person, whose consent is necessary, to transfer such stock 
 to such person as the Chancellor shall think fit. 
 
 The Chancellor's jurisdiction in Bankruptcy is not de- 
 termined by the superseding of the commission, as to any 
 
 (1) Ex parte Tuj)per, 1 Rose, 
 179. Ex parte Whitfield, 2 Atk. 
 315. 
 
 (2) Ex parte Beddam, 1 Rose, 
 510. Ex parte Kirk, Buck. 478. 
 
 (5) Ex parte Hartojip, 1 Rose, 
 410. 
 
 (4) 1 Rose, 450. 
 
 (5) Buck. 47.5.
 
 Sect. 1.] OVER THE PARTIES. 13 
 
 act previoush/ done under it ; for whatever has been done in mined by 
 the bankruptcy may be undone by petition. Therefore a . *"^^'" 
 petition vv^ill lie on behalf of a purchaser of the estates put 
 up to sale by the assignees, for the repayment of the 
 deposit, even after the commission is superseded (1) ; and 
 the Chancellor also has equal power, notwithstanding the 
 supersedeas, to order the petitioning creditor to pay the mes- 
 senger his costs before the choice of assignees. (2) So he 
 may at any time order the production and deposit of the pro- 
 ceedings, which were taken under the commission before it 
 was superseded. (S) The greatest injustice, indeed, would 
 often result from holding, that the jurisdiction of the Lord 
 Chancellor is confined to the period, during which the com- 
 mission subsists; for then, (as the Lord Chief Justice Ab- 
 bott well observed in a luminous judgment delivered by him 
 upon this subject,) a person against whom a commission 
 had issued, which was afterwards found not to be sustain- 
 able, and whose whole property had been taken from him 
 by colour of it, must either bring an action at law, in 
 which he might lose half the value for want of proof; or go 
 through the slow process of a bill in equity for discovery 
 and relief. A petition in bankruptcy isfestinum remedmm, 
 and contributes not less to the saving of expence, than 
 to the saving of time. The proceeding under the commis- 
 sion operates, by way of sudden seizure of property be- 
 longing, or supposed to belong, to a bankrupt. A process 
 so speedy and summary, therefore, requires to be con- 
 trolled by a speedy and summary course of relief. (4) 
 
 In fine, the Lord Chancellor has full and perfect power 
 to make any order whatever which he thinks necessary and 
 expedient for the better distribution of the bankrupt's 
 effects ; and all parties concerned in the working the com- 
 mission, who have either already availed themselves of any 
 benefit resulting from it, or who have come in under it in 
 
 (i) Ex parte Fec^or, Buck. 428. Ex parte Warren, 1 Rose, 276. 
 
 (2) Ex parte Johnson, 1 G. & J. 19 Ves. 162. 
 
 '• (4) Ex parte Cowan, sB. &. A. 
 
 (5) Ex parte Berual, 1 1 Ves. 558. 1 23. 
 
 23.
 
 14 JURISDICTION OF THE CHANCELLOR [Ch. 1. 
 
 any way by proof, jietitiony or otherwise, with an intention to 
 avail themselves of any benefit expected from it, are bound, as 
 any party in a cause woald be, to submit to any such order. 
 Vice The Vice-Chancellor's jurisdiction in bankruptcy is de- 
 
 Chan- rived from the 53 Geo. 3. c. 24. by which act the office was 
 ccllor s 111" 
 
 risdiction. created; and under which he is empowered, by the direc- 
 tion of the Lord Chancellor, Lord Keeper, or Lords Com- 
 missioners of the Great Seal for the time being, to hear 
 and determine all matters depending in the Court of Chan- 
 cery, either as a court of law or equity, or that may be 
 incident to any ministerial office of the Court, or which 
 are submitted to its jurisdiction, or to that of the Lord 
 Chancellor, Lord Keeper, or Lords Commissioners of the 
 Great Seal. 
 
 Some doubts, it seems, at first arose ( 1 ), under the con- 
 struction of the act, whether the Vice- Chancellor had au- 
 thority to hear a petition to supersede a commission ; but it 
 has been settled that he has such authority. (2) He may 
 also hear a petition for the procedendo to issue, where a 
 commission has been superseded by the Lord Chancellor's 
 confirmation of his order for the supersedeas (3) ; and he 
 may likewise certify the propriety of awarding the proce- 
 dendo, in cases where a commission has been superseded 
 upon his certificate. (4) 
 
 The appeal from the Vice-Chancellor's order is by pe- 
 tition to the Lord Chancellor, which must be signed by a 
 barrister. (5) 
 
 Section IL 
 
 Of the Chancellor's Jurisdiction over those who are Strangers 
 to the Commission. 
 
 It is not very easy to reconcile some of the decisions 
 under this head ; but it is apprehended that all difficulties, 
 
 (1)2 Rose, 162. (3) Ex parte Hurd, Buck, 45. 
 
 (2) 2 Rose, 255. note(a). 1 Mont. (4) Ex parte Crump, Buck. .5. 
 
 Dig. 141. (5) Ex parte Holt, Buck. 429.
 
 Sect. 2-3 OVER STRANGERS. 15 
 
 as to the Chancellor's jurisdiction over strangers to the 
 
 commission may be removed, by attending to a plain line 
 
 of distinction that was very clearly drawn by Lord Eldon 
 
 in expressing himself upon this subject. If a person Where a 
 
 claims notJung under the commission, then he cannot be person 
 
 brought by the assignees before the Chancellor on a pe- nothin'^ 
 
 tition in Bankruptcy, notwithstanding the assignees may under the 
 
 allege, that he has money belonging to the bankrupt in his ^^^^ ^^^_ 
 
 hands; the proper course is in such a case to bring an not be 
 
 action, or file a bill, for the recovery of it. If, on the con- Jj°|Jf„ ^^^ 
 
 trary, he cojues i?i of Ms axon accord to avail himself of the jurisdic- 
 
 jurisdiction of the Chancellor in any matter relating to the ^'°"' 
 
 bankruptcy, he must then submit to it in all respects, and come in of 
 
 the Court will enforce its order against him.(l) And "^^ °^" 
 
 TfY^ . . T . accord, 
 
 though there may be a difficulty as to the jurisdiction, 
 
 when a creditor, who is a stranger to the commission, 
 merely applies to have the commission, or the certificate, 
 removed out of the way of his proceeding at law against the 
 bankrupt ; yet, when the creditor goes further, and prays 
 an enquiry into circumstances impeaching the validity 
 of the commission, with a view to supersede it; or, in 
 case the commission should not be superseded, that there 
 may be a new choice of assignees, and that he may be ad- 
 mitted to prove, — it is then clear that he brings himself 
 within the jurisdiction. (2) Whenever a party also, though by obtain- 
 a stranger to the commission, applies for and obtains any '"S ^" 
 order in bankruptcy, he brings himself within the jurisdic- 
 tion. (3) And it seems to follow, that when he only or by peti- 
 petitions the Chancellor for any relief relating to the pro- *^°"*"S- 
 ceedings under the bankruptcy, he, by the very circum- 
 stance of petitioning, submits himself to the jurisdiction. 
 
 It has been determined, however, that where the mes- No juris- 
 
 senger under the commission takes possession of goods, as "*<^'*°" *** 
 o r Id 7 order re- 
 
 (1) Ex parte Pease, 1 Rose,242. (5) Ex parte Bozannet, 1 Rose, 
 igVes. 25. Ex parte /fa//, 1 Rose, 181. Ex parte Pease, ibid. 242. 
 \3. 19Ves. 25. 
 
 (2) Ex parte Wardenburgh, 
 1 Rose, 206,
 
 16 
 
 JURISDICTION OF THE CHANCELLOR [Ch. 1. 
 
 stitution 
 to a incTc 
 claimant of 
 propert)'. 
 
 Excep- 
 tions; 
 
 short bills; 
 
 after claim 
 established 
 on an 
 issue, may 
 order com- 
 pensation. 
 
 Cannot 
 order 
 bankrupt 
 to indorse 
 bills to a 
 stranger to 
 the com- 
 mission, 
 
 the property of tlie bankrupt, the Chancellor has, generally 
 speaking, no jurisdiction to order the goods to be delivered 
 up to a party, merely claiming them as his own, without 
 first directing an issue to try that fact. ( 1 ) Though in a 
 clear case of property, or a very flagrant case of seizure, 
 there is no doubt that the Chancellor has jurisdiction to 
 order such restitution by the messenger, or the assignees ; 
 for the authority vested in him by the statute, to take order 
 for the disposition of the bankrupt's effects, giving him ge- 
 neral jurisdiction over the assignees, it does not seem that 
 he oversteps that authority, when he orders them to restore 
 property, which they are clearly not entitled to retain. And 
 it is upon this principle, that he now invariably orders short 
 bills {2) to be delivered up to the owner of them, in the 
 case of a Banker's bankruptcy, after they have been seized 
 by the messenger as the property of the bankrupt. (3) And 
 where a party, whose property is wrongfully seized under 
 a commission, establishes his interest on the trial of an issue 
 at law, the Lord Chancellor has then power, not only to 
 order restitution of the property, or its value, — but also to 
 order the assignees to compensate the party for the da- 
 mages which he has sustained by the seizure of the pro- 
 perty, or by the subsequent mismanagement of it by the 
 assignees. (4) 
 
 In a case, however, where the bankrupt had delivered 
 bills to third persons for a valuable consideration, without 
 indorsing them, it was decided, that the Chancellor had 
 not jurisdiction to order the bankrupt, or his assignees, to 
 indorse the bills to such third persons, — on the ground that 
 such persons, being perfect strmigers to the commission, 
 were not bound to submit to the order of the Chancellor in 
 this respect. (5) And where the acceptors of a bill, which 
 
 (1) Ex parte Crflgg5, 1 Rose, 2 5. 
 
 (2) See post. 
 
 (3) Ex parte Roivton, 1 Rose, 1 5. 
 Ex parte Pease, ibid. 232. Ex 
 parte Buchanan, ibid. 280. 1 9 Ves. 
 201. Ex parte Burton Bank, 
 
 Rose, 1G2, &c. 
 
 (4) Ex parte Cowan, 3 B. & A. 
 126. 
 
 (5) Ex parte Hall, 1 Rose, 13.; 
 and see ex parte Stewart, 1 G. & 
 J. 344. ; but see contra ex parte 
 Greening, 13 Ves. 206. Ex parte 
 Mowbray, 1 J. & W. 428.
 
 Sect. 2.] OVER STRANGERS. 17 
 
 had been discounted by the drawer with the bankrupt, or restrain 
 
 joined the drawer in a petition, that upon payment of the ^^^ "'^.^'°" 
 11 1 11-111 • -11 ^^^^ from 
 
 balance due on the bill the assignees might be restrained suin<T a 
 
 from proceeding in any action on it, the Lord Ciiancellor stranger. 
 dismissed the petition, as it appeared that the acceptors 
 were pei'fect strangers to the commission. (1) These de- 
 cisions, it must be confessed, seem somewhat irreconcile- 
 able with ex parte Rowio)i, and the cases of short l^ills ; 
 though at the same time it may be observed, there is some 
 distinction between them. For in ex parte Mowloii, the 
 bills, having been seized by the messenger with the otlier 
 effects of the bankrupt, were consequently more immedi- 
 ately under the control of the Lord Chancellor ; while in 
 ex parte Hall, the bills being in the hands of third per- 
 sons, they might have been considered as effects not tangible 
 under the commission, and over which the Chancellor had 
 no direct control. 
 
 When a creditor has iiroved under the commission, AUter, 
 (Lord Eldon has said,) it gives the Court a jurisdiction, quite ^"^" /^ 
 different from that which it is authorised to exercise, where has^row^/. 
 there has been no proof; and that in such a case, where the 
 assignees would have a lien on the dividends, if a claim is 
 determined in their favour, they must in general proceed by 
 petition against the creditor for the recovery of any sums, 
 for which he has given credit on account. (2) And where 
 the commissioners, in balancing the accounts between the 
 bankrupt and a creditor, had found a balance due from the 
 bankrupt to the creditor, the assignees were, on petition, 
 restrained from proceeding, in an action at law against the 
 creditor, for a balance which they claimed as due to 
 them. (3) 
 
 (l) Ex parte Burton, 1 Rose, and the only wonder is, that so 
 
 520, This case is given in some of plain a right of set-off could ever 
 
 the books (l Mont. 266.), as de- have been disputed, 
 
 ciding a point of set-off. The (2) Ex parte Hilton, 1 Jac. & 
 
 reasons for the Lord Chancellor's W. 467. Ex parte Timir^'/, Buck, 
 
 judgment do not appear in the 305. 
 
 report of the case ; but it seems (3) Ex parte Mennett, 1 Rose, 
 
 clear, that it proceeded on the 395. 
 ground of want of jurisdiction ;
 
 18 
 
 JURISDICTION OF THE CHANCELLOR [Ch. 1. 
 
 No juris- 
 diction 
 over se- 
 cond mort- 
 gagee, not 
 claiming 
 I'liider 
 commis- 
 sion. 
 In the 
 case of 
 waste. 
 
 The Lord Chancellor has in one case refused, on petition, 
 to set aside a purchase of the bankrupt's estate against a party, 
 who was a stranger to the commission, — on the ground 
 that his conduct was not controllable under the commis- 
 sion, and that such a proceeding ought to be by hiU.[\) 
 But in a late case before the Vice-Chancellor, a purchaser 
 of the bankrupt's mortgaged estate, (sold before the com- 
 missioners under the general order,) who appears to have 
 been a stranger to the commission, was upon ^petition 
 ordered to complete his purchase, notwithstanding he did 
 not even appear upon the hearing of the petition. (2) And 
 the Lord Chancellor has power also, b}^ the 78th section of 
 the new statute, to order the bankrupt to join in any convey- 
 ance of nis estate to a purchaser under the commission, 
 either upon the petition of such purchaser, or of the as- 
 signees. (3) But the Chancellor has no authority in Bank- 
 ruptcy to compel a second mortgagee, not claiming under 
 the commission, but resting upon his security, to join in a 
 sale obtained by a prior mortgagee (under the general 
 order of the 8th May 1794), where the sale did not pro- 
 duce enough for both mortgages. (4) 
 
 When a petitioner, though a stranger to the commission, 
 makes out a case of voaste against the assignees, and prays 
 an order in the nature of an injunction to restrain waste, 
 the Lord Chancellor has jurisdiction in Bankruptcy to 
 make such order. For though, as the Vice-Chancellor ob- 
 served in this case, it is difficult to find upon what principle 
 the Court first granted injunctions upon petition in Bank- 
 ruptcy, — yet the practice being established, there was every 
 reason to favour it, — as it afforded a speedy remedy in cases 
 of an urgent nature. But, as between the lessor and the 
 assignees of a bankrupt lessee, it has been determined that 
 the Court has no jurisdiction, except in cases under the 
 statute. (5) Therefore, where the lessor of a bankrupt 
 
 (1) Ex parte Bennett, loVes. 
 382. 
 
 (2) Ex parte Gould, 1G.&J.231. 
 
 (3) It seems tliat he had not pre- 
 viously any jurisdiction to make 
 
 such an order. Ex parte Sleivart, 
 1 G. &J.544. 
 
 (4) Ex parte Jackson, 5Ves.3'57. 
 
 (5) Section 75.
 
 Sect. 2.] OVER STRANGERS. 19 
 
 lessee petitioned, that the assignees might be ordered to In cases 
 
 pay rent due after the bankruptcy, and for a compensation ig^gsor and 
 
 for hay, straw, &c. sold and carried off the premises by the the assig- 
 
 assignees, — the petition was dismissed, on the ground that T^^^ ° ^ 
 the Court had no jurisdiction in such a case, unless the 
 petition made out a case for an injunction. (1) 
 
 As the Lord Chancellor has jurisdiction in Bankruptcy As to a 
 
 over the accounts of a partnersMp, upon a separate commis- ^°'^^"*^ 
 . 1. f , , r • partner, 
 
 sion agamst an mdividual partner, — so, as a tair conse- 
 quence of that practice, he has also jurisdiction, upon the 
 petition of the solvent partner, to order the bankrupt part- 
 ner to pay to him his share of the surplus of the joint ef- 
 fects received by the bankrupt, after paying 20^. in the 
 pound. (2) 
 
 In the case of a contempt committed by any one against Over 
 
 the authority of the Lord Chancellor in Bankruptcy, whe- strangers 
 , , , • • I ' i-ii guilty of a 
 
 tner by a stranger, or a party to the commission, the Chan- contempt; 
 
 cellor has in this case equal jurisdiction to punish the of- 
 fender. Any obstruction of the messenger in the execution 
 of his warrant from the commissioners, though without 
 any previous order made by the Chancellor in the matter, 
 amoimts to such a contempt ; and a person, giving a bond 
 of indemnity against the consequences of such obstruction, 
 is himself involved in the contempt. (3) So, wherever and in 
 a fraud upon the Great Seal has been practised in issuing ^^^^^ ^^ 
 a commission, all persons implicated in the fraud may be 
 brought before the Court hy petition, notwithstanding such 
 persons in other respects may be perfect strangers to the 
 commission. (4) 
 
 (1) Ex parte Warwick, Buck. (3) Ex parte Page, 1 Rose, 1. 
 26. Ex parte Titner, 1 Atk. 136. Ex 
 
 (2) Ex parte Lanfear, 1 Rose, parte Dixon, 8 Ves. 104. 
 
 42. (4) Ex parte Boyle, Buck. 247. 
 
 VOL. I. * c 2
 
 26 
 
 Who may 
 be made 
 bankrupt. 
 
 Peers. 
 
 Members 
 of House 
 of Com- 
 mom. 
 Clergy- 
 
 Infant. 
 
 CHAP. II. 
 
 OF THE TRADING. 
 
 SliCT. 1. 
 2. 
 3. 
 4. 
 
 IV/tai Perso7is are liable to Bankruptcy. 
 
 What is a sufficient Trading. 
 
 What is not a siifficient JYading. 
 
 The Place where the Trade must be carried on. 
 
 Section I. 
 What Persons are liable to Bankruptcy. 
 
 1. A.LL persons whatever, who are capable in law of 
 making binding contracts, whatever their rank in society 
 may be, are liable to become bankrupt, if they engage in 
 trade. Thus even a Peer {\\ who traded in wines, has 
 been made a bankrupt; and a member of the Mouse of Com- 
 mons (2), also, incurs by trading the same liability. Clergy- 
 men^ likewise, (though prohibited from trading, by the 
 21 H. 8. c. 13. s. 5.,) it was held, might become bank- 
 rupts — on the principle, that the breach of one law by 
 any individual does not prevent his liability to another. (3) 
 But by the 57 G. 3. c. 99. s.3. a clergyman is now not only 
 prohibited from trading, but every contract made by him 
 in any trade is declared to be absolutely w/c?. It follows, 
 therefore, that as the petitioning creditor's debt (to ground 
 a commission upon it) must be contracted ndiilst the party 
 is in trade (-i), a clergyman can now only be made a bank- 
 rupt, in respect of a debt contracted by him before he en- 
 tered into holy orders. But any public officer, though not 
 in that capacity an object of the bankrupt law, makes 
 himself subject to it by embarking in trade. (5) 
 
 An infant, though he may contract for his own benefit, 
 and though his debts are only voidable by him at his own 
 
 (1) In the case of an Earl of 
 Suffolk, mentioned by Lord Hard- 
 wicke, ] Atk. 201. 
 
 (2) Ibid, and see post, 85. 
 
 (5) Ex parte Meyviot, 1 Atk. 
 196. Hanhcy v. Jones, Cowp. 745. 
 
 (4) Post, 94. 
 
 (5) Highmore v. Molloy, 1 Atk. 
 266.
 
 Ch. 2. Sect. 1.] OF THE TRADING. 
 
 21 
 
 election, is not liable to bankruptcy ; for an infant can awe 
 nothing, strictly speaking, except for necessaries ; and no 
 man can be made a bankrupt for debts which he is not 
 obliged to pay. (1) And even if he is a partner with a 
 person of mature age, a joint commission will be super- 
 seded, that is issued against him and his partner (2); 
 though, if he holds himself out to the world as an adult, 
 and stii Juris, he cannot in that case apply himself to super- 
 sede a commission. (3) 
 
 A married woman cannot for the same reason be a bank- 
 rupt; unless, indeed, she is the wife or daughter of a 
 freeman of London, and is a separate trader there accord- 
 ing to the custom (4), — in which case she may be the object 
 of a commission with respect to her separate effects in trade. 
 And a married woman cannot be made a bankrupt, by 
 reason of having traded before marriage as a feme sole ; 
 for her creditors, upon her marriage, become the creditors 
 of her husband. (5) 
 
 (1) Rex V. Cole, 1 Ld. Raym. 
 443. Ex parte Sydebotham, 1 Atk. 
 146. Bull. N. P. 38. Ex parte 
 Moule, 14Ves. 603.; and see iV. 
 &B. 494. 
 
 (2) YjX^va-te Barwis, 6Ves.601. 
 
 (3) Ex parte Watson, 16Ves.265. 
 Ex parte Hech, cit. ibid. 
 
 (4) Ex parte Carington, 1 Atk. 
 206. Lavie v. Fhillips, 3 Burr. 
 1776. 1 Bl. 570. 
 
 (5) Ex parte Mear, 2 Bro. 266. 
 Mr. Cooke in his Bankrupt Laws 
 (vol. i. p. 27. 5th edit.) seems to 
 think, that any married woman 
 who is separated, by agreement 
 from her husband, and canying on 
 trade on her own account, is liable 
 to be made a bankrupt; and he 
 cites a case before Lord Chan- 
 cellor Apsley, where it was so held; 
 but this appears to be the only 
 case that warrants such a position. 
 The principle on which this doc- 
 trine rests, as contended for by 
 him, is, that if a married woman is 
 liable to be sued to execution for 
 the debts she has contracted dur- 
 
 c 
 
 ing coverture, therefore, a com- 
 mission of bankrupt being con- 
 sidered in law as a statute execu- 
 tion, there is no reason why she 
 should not likewise be subject to 
 this statute execution. And, to 
 establish this point, he gives at full 
 length the case of Ringstead v. 
 Lady Lanesborough (1 C. B. L. 28.), 
 and several other cases. But all 
 these ca.ses seem to be over-ruled 
 by those of Beard v. Webb, 2 Bos. 
 & P. 93., and Mai-shall v. Rutton, 
 8 T. R. 545., in which it was de- 
 cided, that a feme covert, though 
 having a separate maintenance, and 
 living apart from her husband, 
 could not be sued at law for debts 
 contracted during the separation. 
 The result appears to be, that a 
 married woman can only be made 
 bankrupt, where she can be sued 
 and taken in execution for her 
 debts; and this can only be ac- 
 cording to the custom of London, 
 or where, perhaps, her husband has 
 abjured the realm, become an 
 exile, or been transported ; in 
 
 Married 
 
 woman.
 
 22 
 
 OF THE TRADING. 
 
 [Ch 
 
 Lunatic. A lunatic, it has been decided in one case(l), whilst 
 
 under the influence of that dreadful malady, was incapable 
 of committing an act of bankruptcy : but it has been since 
 held, that as lunacy is no defence to an action, so neither 
 is it against a commission of bankruptcy. (2) 
 
 A jjerson attainted^ — as he is liable (notwithstanding the 
 attaint) to be sued in a civil action, it seems, may also be 
 subject to a commission of bankruptcy. (3) 
 
 Bankers, 
 
 Army 
 agent. 
 
 Brokers, 
 
 Section II. 
 
 Wfiat is a mjjicient Trading, 
 
 As the second section of the new statute (6 G. 4. c. 16.) 
 enumerates what persons exercising certain specific trades 
 and occupations shall be deemed traders liable to become 
 bankrupt, it may be as well to take them in the same 
 order as they are mentioned in the statute. They are as 
 follows : 
 
 Bankers, — who were first made liable to bankruptcy by 
 the 5 G. 2. c. SO. s. 39. A person acting as a banker will 
 be held to be one, though he docs not keep an open 
 banking-house (4); but a person acting only as an Army 
 Agent cannot be considered a banker. (5) 
 
 BrcJcers. These were also included in the 5 G. 2. A 
 Pa'iscnhroker has been held to come within this description j 
 for the general word broker is the genus, and all other kinds 
 of brokerage the species. (6) And there seems no reason 
 why a Stock-broker should not be included in it also. (7) 
 
 which cases he is considered as 
 civiliter mortuus, and the woman a 
 widow, 
 
 (1) Ex parte Priddey, 1 C. B, L. 
 37. 
 
 (2) Anon. 3 Ves. 590., and see 
 Mr. J. Blackstone's remarks, in his 
 Commentaries^ upoti the received 
 maxim, that a man shall not be 
 permitted to stultify himself. 
 Quaere, tamen, Whether a lunatic 
 can contract a valid petitioning 
 creditor's d°bt. 
 
 (s) Ramsay v. Macdonald, Fos- 
 ter, 61. Exparte ^w/Zoc/r, MVfes. 
 464. 
 
 (4) Ex parte Wilson, 1 Atk.218. 
 
 (5) 2H.B.255, 1 Mont, 12. 
 
 (6) Highmore v. Molloy, 1 Atk. 
 206. RawlinsoH v. Pearson, 5 B. 
 & A, 124. Ex parte Stevens, 
 4 Mad. 2.5G. 
 
 (7) Sed vide Colt v, Nettervill, 
 2P. Wms.SOS.
 
 Sect. 2.] OF THE TRADING. J3 
 
 Scriveners, — who were first made liable by the 1 Jac. 1 . c. 1 9. Scriveners 
 s. 2. These are described by the new statute, as " persons 
 receiving other men's monies or estates into their trust or 
 custody." As the trade or calling of a scrivener co noiniiie 
 appears to be extinct (1 ), it is somewhat remarkable that the 
 legislature should have recognized it as an existing trade ; 
 but having retained the generic term, it remains to in- 
 quire who are the persons that can be classed within it. 
 A scrivener seems to have been employed formerly as a 
 depositary of money, upon trust to place it out on the best 
 security he could for the account of the owner, and as an 
 agent also in the negociation of loans, and other pecuniary 
 transactions, being remunerated by a commission from 
 those who employed him. This species of traffic has fallen 
 now into the hands of bankers, annuity dealers, and at- 
 tornies ; and as the last persons cannot be made bankrupt 
 in the character of Attornies, it may be useful to consider 
 when they can, in the eye of the law, be looked upon as 
 scriveners. When an Attorney is the general depositary of When an 
 
 the money of his clients and other persons, who employ ^t'^o'i^^y 
 
 I ./ considered 
 him, not simply in his character of an attorney, but as a a scri- 
 
 money agent, to invest their money upon securities at his ^^"^r, 
 own discretion, allowing him procuration fees for any sum 
 placed out by him on bond or mortgage, as well as a fee or 
 charge for the preparing of the deeds, — Mr. Baron Wood 
 held, that such a course of dealing was substantially the 
 business of a scrivener. (2) But if an attorney receives When 
 money as a mere channel to convey it from a lender to a "'^^• 
 borrower, or from one client to another, deriving his prin- 
 cipal profit from drawing the securities, and from the busi- 
 ness of an attorney and a conveyancer, in which such trans- 
 actions may immediately engage him, — then he cannot with 
 propriety be considered a scrivener. (3) Neither does a 
 
 (l) Per Gibbs C.J. 5 Camp. 559. him with great respect. Ibid., and 
 
 The last genuine scrivener is said see Bosvvell's Life, vol.iii. p. 20. 
 to have been a person of the name (2) Hutchinson v. Gascoigne, 
 
 of Jack Ellis, a contemporary of l Holt. 507. 
 Dr. Johnson, who is mentioned by (5) Ibid. 
 
 c 4
 
 2« 
 
 OF THE TRADING. 
 
 [Ch. 2. 
 
 Distinc- 
 tion to be 
 observed. 
 
 When he 
 takes pro- 
 curation 
 fees. 
 
 Scriveners, practising attorney, acting in the common and ordinary 
 business of his profession, though he negotiates occasional 
 loans of money, for which he even receives procuration 
 fees, thereby become a scrivener (1) ; for this is only having 
 incidentally, on particular occasions, the money of his 
 clients to lay out for them. (2) The distinction to be 
 drawn in every case is, whether the business ti'ansacted was 
 incidental to the character of an attorney, or distinct from 
 it; for it is not merely handling other men's money which 
 makes a man a scrivener, — but he must get that money into 
 his hands in a course of tradings whether that trading be 
 for his own benefit only, or for that of other men also, as 
 in the case of a factor. If the attorney, however, takes 
 procuration money for loans, as well as his fees as an at- 
 torney, acting in the former instance to such an extent as 
 to afford evidence of his intention always to do so. Lord 
 Eldon decided that he might then be the object of a com- 
 mission as a scrivener. But his Lordship added, though 
 the same person might unite both the employments of an 
 attorney and a scrivener, it must be ascertained in which 
 transaction he was the one or the other ; and that it was 
 very doubtful whether the policy of the law would permit 
 him to be both in the same transaction. (3) If a client, in- 
 deed, deposit a sum of money with an attorney, until the 
 attorney can find a borrower, ^j/o hcic vice the attorney will 
 be a money-scrivener; and a course of dealing of that de- 
 scription will render him liable to the Bankrupt law, though 
 one or two instances merely would not have this effect. (1) 
 Notwithstanding, therefore, an attorney may unite occa- 
 sionally the employment of a scrivener, by negotiating an- 
 
 When the 
 attorney, 
 tlie pre- 
 
 (1) Ex parte Warren, sSch. & 
 Lef. 414. 
 
 (2) Adams v. Malkin, 3 Camp. 
 534. Per Gibbs C. J., and see ex 
 parte Faterxon, 1 Rose, 402. 
 
 (3) Ex parte Malkin, 2 V. & B. 
 51. per Ld. E. 
 
 (4) Per Gibbs C. I., 5 Camp. 5.-4. 
 and see ex parte Wilson, 1 Atk. 
 
 218. Ex parte BurchaU, Ibid. 141. 
 Bird V. Mayor, Ld. Rayni. 851., 
 and Holt N.P. Rep. 510. where 
 the reporter has in a note of much 
 research thrown great light upon 
 the ancient vocation of a scrivener, 
 in which most of the cases on the 
 subject are collected.
 
 Sect. 2.] OF THE TRADING. 25 
 
 nuities and loans, yet when the attorney is the predominant dominant 
 
 character in these transactions, — that is, where the bonds, '^"^'■'*'^'^^'> 
 
 ' not a sen- 
 judgments, and warrants ot attorney, by which the an- vener. 
 
 nuities are secured to the grantee, are prepared in his office, 
 and he charges for them in his bill as an attorney, thoufrh 
 the annuity commission may be included in these charges, — 
 he will not be subject to the Bankrupt law as a scrivener. (1) 
 It has been decided also, that a Clerk i?i the Custom-house, 
 who was employed by merchants to receive money on de- 
 bentures, with which he discounted bills on his own ac- 
 count, was not a scrivener within the meaninsfof the Bank- 
 rupt law. (2) 
 
 Persons insuring Ships, or their freights, or other matters, Under- 
 against perils of the sea. This description of persons (in ^^"'•'^'''^• 
 common parlance called Underxsoriters) could not, before the 
 new act, m that character, be made bankrupt. (3) 
 
 Warehousemen, Wharf ngers. Packers. Ware- 
 
 Builders. These were not considered traders within the whar- ' 
 formei" bankrupt laws. (4) fingers, 
 
 Carpenters, Shipwrights. It was doubtful whether a car- guiijers 
 penter could formerly be made bankrupt, the Judges having Carpen- 
 upon one occasion differed on the point (5) ; though Lord '^^vht"^" 
 Holt decided that a ship-carpenter was within the former 
 statutes. (6) 
 
 Victuallers, Keepers of Inns, Taverns, Hotels, or Coffee- Inn- 
 houses. Neither victuallers, nor inn-keepers, could formerly ^^^P^^'Sj 
 be made bankrupts, as long as they confined themselves to 
 supplying their guests m the house ; but if their dealings 
 showed a geiieral intention to sell out of doors, however 
 small the quantity actually sold, they v.'ere then considered 
 liable. (7) 
 
 (l) Hurd V. Brt/dges, Holt, 654. (4) ClarJcv. Wisdom, 5Esp. 147. 
 
 (2; Hanson v. Harrison, 2 Esp. Williams v. Stevens, 2 Camp. 500. 
 555. But quaere, whether he would (5) C7ia2wia)iv. Lavijo/iii-c, oMod. 
 
 not now be held to be within the 155. 
 
 words of the new statute, viz. as (6) Kirnerj v. Smitli, 1 Ld. Raym. 
 
 " receiving other men's monies or 741. 
 estates into his trust or custody." (7) Cris-p v. Pratt, Cro. Car. 549. 
 
 (3) Ex parte i?c//, 15 Ves.5 55. Newton v. Tri§^, a Mod. 329.
 
 26 
 
 OF THE TRADING. 
 
 [Ch. 2. 
 
 Cattle 
 dealers. 
 
 Dyers, &c. Dijers, Printers, Bleachers, Fullers, Calenderers. A dyer 
 was considered formerly a trader within the Bankrupt 
 lavvs(l); though the authority usually referred to was 
 certainly far from decisive on the point : and a bleacher, 
 (according to Sir William Evans (2),) had no more right to 
 be designated a trader than a washer-woman. 
 
 Cattle or Sheep Salesmen. This designation will, it is 
 apprehended, include Drovers (who were specially ex- 
 empted from Bankruptcy by the 5 Geo. 2. c. 30. s. 40.); for, 
 as it has been decided that a drover is not merely a person 
 confined to the description in the 5d)i6 Edw. 6. c.l4. s. 16., 
 but one who employs himself generally in buying cattle and 
 selling them again (3), a drover may consequently either be 
 considered as a cattle salesman, — or as a person " seeking 
 his living by buying and selling goods or commodities." 
 
 " All persons using the trade of merchandize by way of 
 bargaining, exchange, bartering, commission, consignment, 
 or othenmse (4), in gross or by retail." 
 
 " All persons, who, either for themselves, or as Agents or 
 Factors for others, seek their living by buying and selling; 
 or by Buyitig and Letting for Hire, or by the Worhnanshij) 
 of goods or commodities.^' (5) 
 
 Factors were also specified as persons liable to Bank- 
 ruptcy by the 5 Geo. 2. c. 30. — though there have been 
 some doubts expressed as to the extent of the meaning of 
 the term (6), which the above description may perhaps 
 buying and remove. The words *' buying and letting for hire" will 
 hire"^ ^^ include a large class of persons, who were not before 
 
 General 
 descrip- 
 tion. 
 
 Factors, 
 
 iSalk. 109. Saunder son V.Bowles, 
 
 4 Burr. 2067. Buscall v. Hogg, 
 
 5 Wils. 146. Patmore v. Vaughan, 
 1 T. R. 572, Ex parte Maginnis, 
 1 Rose, 84. 
 
 (1) Squire y. Johns,Cro.Jac. 5S5, 
 
 (2) Letter to Sir S. Romilly, 
 p. 167. 
 
 (3) Bolton V. Sowerhy, 1 1 East, 
 278. Mills V. Huglies, Willes, 588. 
 and see per Bayley J., 1 1 East, 279. 
 
 (4) These words arc newly in- 
 
 troduced into the description of 
 the trading 
 
 (5) These words in italics are also 
 new, — and are, as well as much of 
 the other new matter in the descrip- 
 tion of persons liable to become 
 bankrupt, taken from the Scotch 
 bankrupt act (."3 G. 3. c. 74. s. 13.), 
 in accordance, it is presumed, with 
 the suggestions of Sir W. Evans, in 
 his able letter to Sir v^. Romilly, 
 p. 167. 
 
 (6) Willes, 189.
 
 Sect. 2.] OF THE TRADING. 27 
 
 strictly subject to the Bankrupt laws, such as Job-masters, 
 Liverif-stahle hccpers, Hackneij-men, Furniture hroJcei's, &c. 
 A Ship-owner too, who was not formerly liable to be made 
 a bankrupt, unless he freighted his ship with a cargo (1), 
 will now, if he buys the vessel, and lets her out on charter, 
 be held, no doubt, to come within the above description. 
 
 Persons seeking their living " by the Workmanship of Work- 
 goods or commodities^^ will comprehend all the operative ™^"* 
 classes, save common labourers or workmen for hire, who 
 are afterwards excepted by the statute. Indeed, various 
 species of manufacturers and artizans, whose living is sub- 
 stantially gotten by mechanical labour, with a mixture of 
 buying and selling, have, independently of the new statute, 
 been always held to come within the Bankrupt law ; — such 
 as Shoemakers, Smiths, and the like, whose labour is only 
 in amelioration of the commodity they buy, and to render 
 it more fit for sale. (2) To these may also be added Clo- 
 thiers{3), Ta}iners{3), Bakers (3), Brexvers{3), Plumbers {4!), 
 Nailors (5), Butchers (6), and many others, to whom the 
 same observation will apply. 
 
 Having thus disposed of the different occupations and 
 trades specifically mentioned in the statute, it remains to 
 consider the very comprehensive descriptions of " all per- 
 sons who seek their living bij buying and selling" — and of 
 those also, who " use the trade of merchandize by way of 
 bargaining, 8fc., in gross or by retail" 
 
 A trader, as Lord Camden has described him, is one Definition 
 who gains an extensive credit upon an uncertain and in- ^^^^^^ 
 visible capital ; his credit being in proportion to the extent 
 of his dealings, and being liable, from the very nature of 
 his trade, to unforeseen losses, by the failure of those per- 
 sons to whom he is obliged to give credit, and with whose 
 credit bis is interwoven. (7) To bring a man within the 
 
 (1) Ex parte ^0M'e5, 4 Ves. 162. (5) Goodinge, 12. 
 
 (2) 2 Bl. Com. 476. Cro.Car.51. (6) 4 Biirr.214S. Dallyw Smith. 
 
 (3) 2 Com. Dig. 1 and 2. (7) Port v. Turton, 2 VVils. 169. 
 
 (4) Hut. 46.
 
 28 
 
 OF THE TRADING. 
 
 [Ch. 2. 
 
 Smuggler. 
 
 A single 
 act not 
 suflScient* 
 
 descriptive words of the statute, as a person " seeking his 
 living by buying and selling," there must, of course, not 
 only be proof of the animus ?nercandz, but of the animus 
 quare?idi victum mercando. ( 1 ) And the buying and selling 
 also should be a buying and selling of the same commodity 
 to constitute a regular trading; for a man who lives by 
 buying only^ or selling only^ cannot be a bankrupt. (2) It 
 is innnaterial, however, whether the commodity is sold 
 again in the same state, or whether it is converted into any 
 other shape, and has its value improved by the process of 
 manufacture, or by manual labour bestowed upon it. 
 Thus a Merchant^ or Retail Shopkeeper, a Manufacturer 
 on a large scale, or a Common Artizan, who seek their living 
 by purchasing goods or materials, and selling them again, 
 either in their original or altered state, are all equally 
 traders within the Bankrupt law. A person who even 
 deals in a commodity illegally, as a, Smiigglcr [3], though 
 he commits an offence against an act of parliament, and is 
 punishable for so doing, is nevertheless considered a trader ; 
 for (as in the case of the Clergyman (4) before mentioned) 
 he is not to avail himself of the breach of one law in order 
 to avoid being subject to another. So a person buying and 
 selling Horses may be a trader, though he has not taken 
 out the licence required by law to deal in horses. (5) 
 
 One single act of buying and selling, however, will not 
 make a man a trader within the Bankrupt law; for he 
 could not be in that case said to seek his livi?ig ,- and, there- 
 fore, some repeated practice of buying and selling, and an 
 endeavour to gain profit by so doing, is required to be 
 proved. (6) For a man may import goods without selling 
 them, or sell off goods previously bought for his private 
 use or any special- purpose, without being deemed a 
 
 (1) Ex parte Paterson, 1 Rose, 196, Cobb v. Si/moiids, 5B. &A. 
 402. 516. 
 
 (2) Per Ld. M., Hankey v. Jones, (4) Ante, p. 20. 
 
 Cowp. 750. (5) Ex parte G'lbbs, 2 Rose, 38. 
 
 (.3) Ex parte MeijnoU, 1 Atk. (6) 2B]. Com. 476.
 
 Sect. 2.] OF THE TRADING. 29 
 
 trader. (1) But trading in a very small degree will sustain 
 a commission, if sufficient for the inference of an intention 
 to deal generally ; the trading depending not so much upon 
 the quantity as upon the intention, (2) Neither is Siwy jwofit 
 an absolute ingredient to prove a man a trader ; for the 
 general presumption in all cases of Bankruptcy is, that 
 there is no profit, — but either waste, imprudence, misfortune, 
 or ignorant trading. The true criterion is, whether the 
 party means to sell, mth a view to jprqftt, to any person 
 who applies for the commodity in which he professes to 
 deal. And the intention of the party to sell generally to 
 all customers, or as a favour to particular persons, is a 
 question of fact, that must be left in each particular case to 
 a jury to determine. (3) 
 
 The PuUisher of a Ne'-jospaper, having the whole daily im- Publisher 
 pression from the proprietors, reselling it at a profit, and ^'^"sws- 
 bearing the loss of such papers as remain unsold, has been 
 considered to be a trader within the Bankrupt law, — not- 
 withstanding he is in fact a servant of the proprietor of the 
 newspaper. (4) 
 
 Draimjig and redrawifig Bills of Exchatige, — if there be a Drawing 
 
 continuation of doing; so, with a view to ijain a profit upon ^"^ '^.^' 
 
 . . . CD i. ir drawino- 
 
 the exchange, is a trafficking in exchange, — and a trading, bills of 
 
 also, within the Bankrupt law. (5) exchange. 
 
 A Fisherman, buying fish of other boats at sea, and sellino- Fisher- 
 it on shore, has been likewise deemed a trader; but not if '"^"* 
 he merely sells the fish which he catches himself, or even 
 if he buys a few fish occasionally to make up a sufficient 
 cargo. (6) 
 
 (1) 5Keb. 451. 1 Ventr. 29. 70. 5 G. 4. c. 98. the " drawing and 
 
 (2) Ex parte Moule, 14 Ves. 602. redrawing, negotiating or discount- 
 
 (3) Patman v. Vaughan, 1 T. R, ing bills of exchange," was made 
 572. Bartholomew V. Skenvood, a specific act of trading; but that 
 Ibid. 575. Gale v. Halfkiiight, provision is, for some cause un- 
 3 Star. 56. known, omitted in the present 
 
 (4) Gillinghamv. Laing, 2 Marsh, statute. 
 
 236. 6 Taunt. 532. (6) Heanny V. Birch, 1 Rose, 
 
 (5) Richardson v. Bradshaiu, 556. Ex parte Gallimore, 2 Rose, 
 1 Atk. 128., but see post. In the 428., per Ld.Eldon.
 
 90 
 
 OF THE TRADING. 
 
 [Ch. 2. 
 
 Brick- 
 maker. 
 
 Owner of 
 
 a colliery. 
 
 Lands or 
 mines oc- 
 cupied for 
 a manu- 
 facture. 
 
 A Bricl'maJccr, who took the earth off the waste (for 
 which he afterwards paid a consideration), with which he 
 made the bricks, and sold them when made, has been held 
 a trader. (1) But if he makes bricks from the produce of 
 Jiis otfji soil, whether he holds the land as a termor, or a 
 freeholder, he is not then considered so ; for every man has 
 a right to make the most he can of the produce of his land, 
 without being deemed a trader. But if he jmrchases the 
 clay io make the bricks, he would then bring himself within 
 the Bankrupt law. (2) 
 
 And, upon the same principle, the owner of a Colliery 
 selling coal that he buys at market, together with that 
 from his own mine, is a trader within the statute (3), though 
 it is a question for the jury as to the intention with which 
 he bought the coal. (4-) For if a man buys any article, for 
 the mere purpose oi mixing it with the produce of his own 
 land, in order to sell the mixture more advantageously, — 
 he does not thereby become a trader. (5) 
 
 But where lands or mines are occupied, not for the pur- 
 pose merely of selling the produce, or of getting the ore, 
 but for the purpose of carrying on a great manufacture, 
 which renders it necessary to puixhase other produce or 
 ore, in order to mix with the produce or ore of the occu- 
 pier's lands or mines, this becomes then a trading within 
 the Bankrupt law. (6) 
 
 The question, in all these cases of working up the pro- 
 duce of the soil, is, whether the bricks are made, or the ore 
 is manufactured, merely as a mode oi enjoying the ■profits of 
 the land, — or whether the making of the one, or the manu- 
 facture of the other, is done and carried on substantially 
 and independently as a trade. And the same rule of con- 
 
 (1) Ex parte Harrison, 1 Bro. 
 173., and see note(l), p. 31. 
 
 (2) Ex parte Gallimore, 2 Rose, 
 424. Sutton V. Weeley, 7 East, 442., 
 and see Parker v. Wells, 1 T. R. 34. 
 iC.B. L. 41. et seq. 
 
 (3) Port V. Turton, 2 Wils. 169. 
 
 (4) 2 Rose, 424. 
 
 v,5) Patten v. Browne, 7 Taunt. 
 409. 
 
 (6) Crawshay v. Moule, 1 Swanst. 
 495. 1 Wils. 181.
 
 Sect. 2.] 
 
 OF THE TRADING. 
 
 31 
 
 struction applies to Manufacturers of Alum^ Lime-burners, 
 and -proprietors of Stone quarries. ( 1 ) 
 
 With respect to persons engaged in Partnership, — it has Partners, 
 been held sufficient proof of trading, that a party acknow- 
 ledge himself to have been in partnership with one who 
 was a trader, and has also given directions in the concern, 
 — although no positive act of buying and selling during 
 the term of the partnership, as to him, may be established 
 m evidence. (2) 
 
 An Executor, who carries on the trade of his testator, and Executor 
 in the course of such dealing buys and sells entire parcels 
 and quantities of goods, is liable to be made a bankrupt ; 
 though he carries on the trade merely for the benefit of his 
 testator's children (3), and though his name does not ap- 
 pear in the business. (4) 
 
 If a person leaves off his trade for some other employ- 
 ment, his doing so will not exempt him from his liability to 
 be made a bankrupt, unless he discontinues it with the ex- 
 press object of abandoning it, and completely detaching 
 from himself the character of a trader. (5) And still less will 
 a person be exempted from such liability, who only partially 
 discontinues his trade, or ceases to carry on only a parti- 
 cular portion of it. Thus a Pawnhroher, who had given 
 over taking in goods on pledge, but continued to sell the 
 unredeemed pledges, was held still to carry on the trade of 
 a pawnbroker, and to be subject to the Bankrupt law. (6) 
 So a Mamfacturer, who merely ceases to manufacture 
 more goods, does not lose the character of a trader if he 
 continues to sell those already manufactured. (7) So also 
 where a party was in partnership with another, which had 
 
 Partial dis 
 continu- 
 ance of 
 trading. 
 
 (1) Brickmakers, Lime-burners, 
 and Manufacturers of Alum, were 
 specifically enumerated by the 
 5 G. 4. c. 98. as persons liable to 
 be made bankrupt; and there seems 
 to be no reason why they should 
 have been left out of the present 
 statute". 
 
 (2) Parker v. Barker, 1 Brod. & 
 Bing. 9. 
 
 (.5) Viner v. Cadell, 5 Esp. 88. 
 Ex parte Garland, loVes. 110. 
 
 (4) Hankey v. Towgood, 1 C. B. 
 L. 67. ; but see post. 
 
 (5) Ex parte Paterson, 1 Rose, 
 402, Ex parte Cundy, 2 Rose, 257. 
 
 (6) Rawl'mson v. Pearson, 5 B. 
 & A. 124. 
 
 (7) Wliaren v. Routledge, 5 Esp. 
 235.
 
 32 
 
 OF THE TRADING. 
 
 [Cli. 2. 
 
 been dissolved some years, and no act of trading had been 
 done for two or three years before the petitioning creditor's 
 debt accrued, but the concern had not been ultimately wound 
 up, and part of the stock still remained in the warehouse of 
 the parties undisposed of, — the trading in this case was held 
 to be continued. (1) And though a trader retires altoge- 
 ther from business, yet if he owes debts contracted in the 
 course of his trade^ and afterwards commits an act of bank- 
 ruptcy, he is still liable to be made a bankrupt. (2) 
 
 What not 
 sufficient. 
 
 Farmers. 
 
 Section III. 
 What is not a sitfficient Trading. 
 
 In considering what is not a sufficient trading within the 
 Bankrupt law, we may first notice those persons who are 
 sjiccially exempted from Bankruptcy by the statute. 
 
 1. Fanners, — who are also excepted by the 5 G. 2. 
 c. 30. ; and the reason of the exemption seems to be, that 
 trade is not their princijml, but only a collateral object; 
 (their chief concern being to manure and till the ground, 
 and make the best advantage of its produce ;) and also, that 
 the subjecting them to the law of Bankruptcy might be the 
 means of defeating their landlords of the security, which 
 the law has given the latter, above all other creditors for the 
 payment of their reserved rents. (3) But this exception, 
 of course, merely extends to them while they continue to 
 deal as farmers; for if they trade in any commodity 
 not incident to the farming business, their character of 
 farmers will not exempt them from a liability to be made 
 
 (1) Backhouse v. Tarleton, 2 Star. 
 Evid. 143. 
 
 (2) Ex parte Bamford, 15Ves. 
 449. The early cases upon the 
 question, whether a trader who 
 had ceased to buy, but was selUng 
 off' his stock, could be made a 
 bankrupt, are not very satisfactory. 
 (Cotton V. Daintry, 1 Ventr. 69. 
 2 Keb. 487. Lutw. 411. Bateinan's 
 
 case, 1 Ventr. 166. Naylor v. Hall, 
 Palm. 323.) The cases cited in the 
 text, however, place the doctrine 
 now upon its proper footing, — the 
 material point for consideration 
 being, whether the trade is com- 
 pletely abandoned, or whether it is 
 only partially discontinued, with an 
 intention to resume it. 
 (3) 2B1. Com. 474.
 
 Sect. 3.] OP THE TRADING. 33 
 
 bankrupt. Therefore, though a farmer who makes cheese What not 
 for sale, and buys salt and runnet to mix with the milk of sufficient, 
 which it is composed, is not thereby a trader, — yet if he 
 huij& up the cheese from other dairies and sells it, he in such 
 a case becomes a trader. So also if he buys a greater quan- 
 tity of horses or cattle, or of any other commodity, than can 
 be fairly considered necessary or incidental to the enjoyment 
 and stocking of his farm, and sells them again for profit.(l) 
 But if he sells his horses or cattle when he has no longer 
 need of them, — or if he purchases provender for his cattle, 
 and, finding he has more than is requisite for their con- 
 sumption, sells part of it again, — then either of these acts 
 of buying and selling will not render him a trader. (2) So 
 where a farmer, who kept hounds, was accustomed to pur- 
 chase dead horses to feed them, and sell the skins and 
 bones when the carrion was consumed, he was not con- 
 sidered a trader within the Bankrupt law; — notwithstanding 
 on one occasion he had said that he should make a good 
 thing of it; for the horses were purchased expressly for 
 the dogs, and not with the view of any ulterior profit. (3) 
 And where a farmer occasionally (that is, six times in 
 twelve years) bought horses, hay, corn, &c. even with a 
 view to sell again for profit, it was held that he did not 
 thereby necessarily make himself a trader within' the Bank- 
 rupt law; and that it was for a jury to determine, whether 
 he was such a general dealer in horses, or those other 
 articles, as to induce them to consider him as seeking his 
 livelihood by buying and selling. In this last ease Mr. 
 J. Chambre observed, that he could not help thinking 
 that in Barthulomenjo v. Sherwood {if) it was a pretty 
 strong thing there to find the party a trader (5) ; and that 
 
 (1) Bartholomew v. Sherwood, (5) Smumersett v. Jervis, 3 B. 
 
 1 T. R. 57.J. note (a). Mayo v. &B. 2. 6 Moore, 56. 
 Archer, \^Vc.5\o. Ex parte Gi'.i^, (4) Supra 
 
 2 Rose, 38. Wright v. Bird, 1 Pri. (5) He had bought and sold five 
 20. or six horses for profit, in the 
 
 (2) Bolton V. Sovterby, 1 1 East, course of two years. 
 274.
 
 OF THE TRADING. 
 
 [Cll. 2. 
 
 What not 
 sufficient. 
 
 Graxiers. 
 
 Drovers 
 not ex- 
 empted. 
 
 Cow- 
 keeper. 
 
 and WorJc- 
 men. 
 
 I^eceiver. 
 "encral. 
 
 any gentleman might make a few occasional bargains, with- 
 out having recourse to them as the means of seeking his liv- 
 ing. (1 ) So if a farmer, from the deHciency or badness of his 
 crops, buy other produce to mix with his own, in order to 
 improve it, or to make up the usual quantity for sale, — 
 this act of buying and selling will not subject him to the 
 Bankrupt law ; his object being not to become a regular 
 dealer in the article bought and sold, but to make the most 
 of the produce of his farm. (2) 
 
 2. Graziers are also excepted (as they were by the 
 5 G. 2. c. 30.) from liability to be made bankrupt; and 
 for the same reason as applies to farmers. That statute 
 (as has been before observed) also excepted Drovers ; but 
 the same reason of exemption is not applicable to them ; 
 a drover being a person who buys cattle at one town or 
 market, and drives thera to another for the purpose of 
 speedily selling them (3); whilst a grazier, though ho buys 
 cattle for sale, yet agists them generally some length of 
 time upon his farm, for tlie purpose of fattening them, and 
 preparing them for the market. A Coxo-kceper^ also, who 
 purchases cows and sells the milk, is considered within the 
 description oi ix farmer or grazier ^ notwithstanding he sells 
 the calves as well as the milk, and when the cows have 
 ceased to yield milk, is in the practice also of fattening them 
 for sale. (4) 
 
 3. Comrnon Labourers, or Workmen for hire, are also ex- 
 cepted by the statute, as they were by the 5 G. 2. ; for these 
 persons not only do not get their living by buying and 
 selling, but they have also neither capital nor credit; both 
 of which are essential ingredients in the character of a 
 trader. 
 
 4. Reeeiver-gencral of the Taxes, — which office was also in 
 the exceptions of the former statute; the principle of the ex- 
 
 (1) Stewart v. Ball, SN. R. 78. '(3) Willes, 590. 
 
 (2) Patten v. Browne, T Taunt. (4) Carter w. Dean, \?>v!anst.6^. 
 409. Mii. Y^iwie Gallimore, 2. Rose, Ex parte Lei/j/flrd, cit. ibid. 1 Wils. 
 427. 85.
 
 Sect. 3.] OF THE TRADING. 35 
 
 ception beinff* that the kinir should not be defeated of those What not 
 extensive remedies, which are put into his hands by the '' " "^" ' 
 prerogative. ( 1 ) 
 
 5. Member of, or subscriber to, any incorporated Com- Public 
 mercial or trading Companies established by Charter or Act of °^'^P^^*^^' 
 parlia?nent. This exception was provided for before, by 
 particular statutes (2), as to members of the Bank of Eng- 
 land, and the East India and some other public com- 
 panies, — but was not an express exception included in the 
 Bankrupt law. 
 
 Besides these persons who are thus sjjecially exempted 
 from Bankruptcy by the statute, there are various others 
 who by different judicial decisions have been held not to 
 come within the Bankrupt law. 
 
 For as a single act of buying and selling will not con- 
 stitute a trading (3), so neither will occasional acts under 
 particular restraints, or for particular purposes. Thus the Colonel of 
 
 Colonel of a Fencible re<iiment who sells the cast-off horses ^"'^' ^ 
 '' _ c^ regiment. 
 
 of his regiment (4) ; a Schoolmaster who buys books to sell School- 
 to his sclioh^rs (5) ; the Owner of a Mine (6) vvho buys "'''^^^'■- 
 
 V / ' J \ I J Owner of 
 
 candles to sell to his workmen; or a Contractor for Vicinal- a mine. 
 
 li?ig the Kings feet [1), who merely buys provisions for that f|°"' 
 purpose, and sells off the surplus, is neither of them, in 
 respect of such several dealing, liable to be made bankrupt. 
 
 So no man vvho holds a Public Office, and vvho, in order Persons 
 
 to fulfil the duties of it, is obliired to buy and sell, is a •lolchng a 
 
 trader vviihm the Bankrupt law, — it the buying and selling office. 
 is strictly confined to the discharge of his official duties. (8) 
 
 Thus the King's Butler or Steward {9";, the Butlers or Slew- King's but- 
 
 ards of the Inns of Court, Sutlers of armies {10), Commis- ^^^>^c- 
 
 (1) 2 Bl. Com. 474. (7) Per Holt C.J. Comb. 182. 
 
 (2) Whitm. B. L. 15. 1 Salk. i09. 
 
 (5) Ante, p. 9. (8) Gibson v. Thonwson, 3 Keb. 
 
 (4) Ex parte Blnchnore, 6 Ves.S. 451. 
 
 (5) 3 Mod. 550. Valentine v. (9) Skin. 292. 
 
 Vaii'^kan, Peake, 76. Oo) 5 Keb. 151. C. B. L. 56. 
 
 (6) Ex parte Walker, 1 C. B. L. 
 55. Ex parte Craddock, ibid. 
 
 D 2
 
 36 
 
 OF THF, TRADING. 
 
 [Ch. 2. 
 
 What not 
 sufficient. 
 
 Persons 
 sellin;: the 
 produce of 
 their land. 
 
 Lead and 
 iron mines. 
 Cider 
 grower. 
 
 Coal-vmie, 
 stone- 
 quarry. 
 
 Lime- 
 burner. 
 
 Alum- 
 works. 
 
 sioners of the Excise, and Farmers of the Customs ( 1 ), are 
 none of them within the bankrupt law. 
 
 No person possessed of or occiipyinfr land, cither as 'a 
 freeholder or a termor, and selling the produce of it, 
 whether obtained above or below the surface, is considered 
 a trader within the law of Bankruptcy. And it makes no 
 difference whether such produce is got and sold without 
 undergoing any change, — or whether, after getting or 
 gathering, it is worked up for sale in the usual way with 
 other ingredients, and by various processes. Thus the 
 worker of Lead or Iron Mines, or the Cider-groixier, who 
 respectively cause the ore and the apples to undergo different 
 processes, before they are converted into the material which 
 is sold, is no more liable to be made bankrupt than the 
 owner of a coal-mine ['2) or of a stone-quarry {?>), or the 
 farmer or market gardener, who sell the simple substance 
 and produce of the soil in the same state, as it is respectively 
 got and gathered. So the maJdng of four from corn 
 grown on a man's own land, and selling it afterwards for 
 profit, will not make him a trader. For all these different 
 processes are only incidental to the necessary sale of the 
 produce of the soil, and the usual mode of enjoying it. 
 And for the same reason, the lessee of a farm on which 
 was a lime-kiln, and which he worked as a lime-hurner, was 
 held not within the bankrupt law (4) ; — nor the lessee of 
 Ahim-xwrks, — evidence being given of the usual mode of 
 enjoying such works, and of the process of making alum ; 
 in which, it appears, the rude mass is the rock, which, after 
 being dug, is burned, steeped, and boiled in lead, and then 
 mixed with kelp, lees, and urine. (5) And though different 
 ingredients, as has been already observed, may be bought, 
 m order to mix with the produce of the land, and the better 
 to manufacture it and bring it to market, — yet this circum- 
 
 (1) iVentr. 2V0. (4) Ex parte TJirfge, 1 Rose, 3 16. 
 
 (2) Fort V. Tnrton, 2 Wils. 1S9. 1 V. & B. 360. 
 
 {z) Ex parte Gardner, 1 Rose, (5) Newton v. Xewton, 1 C B. L. 
 
 377. ; and see ante, p. 30. 57.
 
 Sect. 3.] OF THE TRADING. 37 
 
 Stance of itself will not render a man the more liable to What not 
 Bankruptcy. (1) The dislinction that must not be lost ^ "^^"^"^ ' 
 sight of is, whether the materials are purchased, for the 
 express purpose of putting the naked production of the 
 earth into a manufactured and marketable state; or whe- 
 ther such production is an insignificant article, compared 
 with the quantity or value of the materials bought, and of 
 the manufacture itself. (2) 
 
 Upon this principle, the Fisherman, as we have seen (3), Fisher- 
 who does not obtain a sufficient cargo by his own fishing, 
 and buys a i'ew fish merely to complete it, and supply the 
 market, is not held to be a trader (4); for, in order to enjoy 
 the produce of his personal labour, he is thus compelled, 
 as it were, to the act of buying occasionally, that he may 
 be able to sell such produce. If, indeed, the materials 
 bought are beyond "ooJiat is Jiecessarij to supply the personal 
 labour, it then becomes an act of trading. (5) But where 
 a party, being engaged in the Greenland fishery^ in the 
 course of nine years made three different purchases of oil, 
 one of which he had sold again. Lord Chief Justice Abbott 
 thought it was too slight a case of dealing to warrant a jury 
 in finding him a trader, and as one who had sought his 
 livi?ig by buying and selling. (6) 
 
 As the proprietor or occupier of land cannot be made a Buying 
 bankrupt for acts of buying and selling its produce, so, 'l^f J^^^ 
 a fortiori, the buying aiid selling land itself, or an interest 
 in land, is not such a buying and selling, as will constitute 
 a trading. (7) 
 
 Bank stock and Government seairities, not being articles Govern- 
 or merchandize, — the mere buying and selling them, it has ^"^-^JJ' 
 been said, will not be a trading within the Bankrupt law (8); &c. 
 
 (1) Patten V. Browne, 7 Taunt. (5) Ibid. 
 
 409. Ex parte Galtimore, 2 Rose, (6) Gale v. HalfknigJd, 3 Star. 
 
 427. 56. 
 
 (2) Parker v. Wells, 1 T. R. 34. (7) Port v. Turton, 2 Wils. 169. 
 
 (3) Ante, p 29. (8) 2 Bl. Com. 476. Colt v. Net- 
 
 (4) Ex parte Gallimore, 2 Rose, tervUle, 2 P. Wois. 508. 
 428. 
 
 D 3
 
 38 
 
 OF THE TRADING. 
 
 [Ch. 2. 
 
 What not 
 sufficient. 
 
 Stock- 
 broker; 
 Quaere. 
 
 Drawing 
 and re- 
 drawing 
 bills of 
 exchange. 
 
 Executor. 
 
 and this position lias been laid down in all the books that 
 have treated upon Bankruj)lcy. It is. however, a mere 
 obiter dictum of Lord King, which was applied by him to 
 the case of a projvicto?- of East India stock, and does not 
 seem to be ajiplicable to the case of a Stock-broker, re- 
 ceiving a commission for buying and selling stock for 
 other persons. 
 
 With respect to persons engaged in the traffic of draiving 
 and redratjoiiig Bills of Exchange, Sfc. — it is not every draw- 
 ing and re-drawing that will be considered to be traffic. For 
 if a person having occasion for money to pay a debt on 
 mortgage, or any other security, draws on his banker for 
 it, and as a mode of repayment, permits the banker to 
 draw on him by bills, — such a drawing and re-drawing 
 would not, it seems, be held to constitute a trading. (1) 
 
 An Executor, who merely disposes of the stock in trade 
 of his testator, does not thereby become a trader, even if 
 he buys some additional goods to render those on hand 
 more saleable. Therefore, where the executor of a wine- 
 merchant found it necessary to buy wines to refine the 
 stock left by his testator, his doing so was held not to 
 render him a trader within the Bankrupt law. But if he 
 had bought wines, and sold them to the customers entire, he 
 would then, as we have already seen, have been liable to be 
 made a bankrupt (2), notwithstanding even he was trading 
 for the benefit of his testator's children. (3) 
 
 A buying in connection with others, with a view to carry 
 on a system of fraud, is not a trading within the bankrupt 
 law (4); but when a party represents himself as a dealer, 
 and offers goods in exchange, it is then a question for the 
 jury to say, if he does not buy to sell again. (5) 
 
 (1) Per Ld. M., Hanhey y. Jones, 
 Cowp. 751. 
 
 (2) Ex parte Nutt, 1 Atk. 102. 
 (5) Viner v. Cadell, 3 Esp. 88. 
 
 10 Yes. 1 10. ; and see ante, p. 31. 
 
 (4) Millikin v. Brandon, 1 Carr, 
 380. 
 
 (5) Ibid.
 
 Sect. 4.] 
 
 OF THE TRADING. 
 
 39 
 
 Section IV. 
 Of the Place 'where the Trade must he earned on. 
 
 The acts of buying and selling, which jointly constitute 
 the trading, need not hoth^ take place in England; for if a 
 merchant, whether native, denizen, or alien, buys beyond 
 sea and sells in England, or buys in England and sells 
 beyond sea, — it is a sufficient trading to make him liable to 
 a commission of Bankruptcy, provided he comes to this 
 country, and there commits an act of Bankruptcy. For his 
 trading ifo England procures him a credit here; and it is 
 quite sufficient if he is occasionally, and not permanently 
 resident in this country. (1) 
 
 (l) Alexander w. Vaughmi, Cowp. 
 398. Ex parte Smith, cited Cowp. 
 402. Hitchcox V. Sedgwick, sVern. 
 162. 1 Salk. 110. Dodsworlh v. 
 Anderson, Sir T. Raym. 375. Jones, 
 
 141. Ex parte Williamson, 1 Atk. 
 82. Inglis V. Grant, 5 T. R. 530. 
 Allen V. Cannon, 4 B. & A. 418. 
 Williams v. Nunn, 1 Taunt. 270. 
 
 D 4
 
 40 
 
 CHAP. III. 
 
 OF THE ACT OF BANKRUPTCY. 
 
 1. Of the Nature and Effect of an Act of Bankruptcy 
 
 generally. 
 
 2. Of the several Acts of Bankruptcy specified in the St a tide. 
 
 Section I. 
 Of the Nature and Effect of an Act of Bankniptcy generally. 
 
 IJEFORE we enumerate the various acts of bankruptcy spe- 
 cified in the statute, it is proposed to consider the general 
 nature and effect of an act of bankruptcy; which, though 
 treated in many of the former statutes as a criminal act on 
 the part of the bankrupt, has been now king regarded as 
 nothing else than a mere proof or test of a trader's in- 
 solvency. And in this light it is viewed by the legislature 
 in the several enactments of the present statute, which are 
 more adapted to the relief of embarrassment and mis- 
 fortune, than the punishment of fraud or crime. 
 Must not An act of bankruptcy, to ground a commission on, ought 
 be of long ^q \yQ Q^e recently committed, or at least not one of very long 
 standing; for there is sometimes great mischief in the re- 
 lation back, which the law is obliged to give to the act of 
 Bankruptcy ; — and when that is endeavoured to be pushed 
 to too great an extent, — as by suing out a commission on one 
 committed several years ago, — the commission will be super- 
 When seded. (1) The act must also be committed either during 
 ruist be tradings or subsequent thereto^ — and also during the existence 
 
 ted. 
 
 (1) Ex parte Bowes, 4 Ves. 175. i Lev. 13.
 
 Ch. 3. S. 1.] OF THE ACT OF BANKRUPTCY. 41 
 
 of a debt contracted when in trade. (1) And as the statute 
 seems to be confined to England, and not to extend to acts 
 done in other parts of the British dominions, or in foreign 
 countries, (with the single exception of remaining out of 
 the realm), — the act of bankruptcy must, therefore, with 
 tliat exception, be committed in England. (2) 
 
 It must also be committed before the commission is 
 sealed; though, if the sealing of the commission, and the 
 committing of the act of bankruptcy, are on the same day, 
 the priority of the act of bankruptcy may be established by 
 evidence. (3) And in the case of a partnership, and a 
 joint commission issued against the firm, each of the part- Partners, 
 ners must have committed an act of ba nkruptcy in order 
 to support the commission. (4) 
 
 The legislature having also expressly declared, by posi- Not by 
 tive enactments, what shall be considered criterions of in- I'JiP'ica- 
 solvency or fraud whereon to ground a commission of 
 bankruptcy, none other can be admitted by inference or 
 implicalion. (5) 
 
 A peculiar and a very important quality attached to an Cannot be 
 act of bankruptcy is, that, when once clearly committed, it purged, 
 cannot afterwards be explained away (6); even though the 
 trader was perfectly unconscious at the time that he was 
 committing an act of bankruptcy — and when he was so 
 conscious, did immediately every thing in his power to re- 
 call it (7); or, even though the trader for some time after- 
 wards continues perfectly solvent, and carries on a con- 
 siderable trade. (8) But though a trader may commit a 
 
 (1) Ex parte Bamfurd, 15Ves. 15 Ves. 462. IvVes. 198. sBl.Com. 
 449. Ex pilrte Dewdney, ibi(i. 495. 479. 
 
 (2) Alexander \. Vaughan, Cow\i. (6) HopJcins v. Ellis, 1 Salk. 110. 
 598. Nordcn v. James, Dick. 533. Holt, 95. Colkett v. Freeman, 2T. 
 Inglis V. Grant, 5 T. R. 530. R 59. Wood v. Thwailes, 3 Esp. 
 
 (.3) Wydown's case, ]4Ves. 80. 245. 
 Ex parte Dufrene, 1 Rose, 333. (7") 2 T. R. 62. Muckloio V. 
 
 {^) Mills \. Bennett, 2 y[.&^. ilffl?/, 2 Taunt. 479. ' 
 
 556. Ex parte Mavor, 19 Ves. (8) Hassells v. Simpson, Doug. .^ 
 
 543. 69. Pulling V. Tticker, 4 B. & A. 
 
 (5) iBl. Rep. 442. 3Cowp.350. 382.
 
 42 OF THE ACT OF BANKRUPTCY. [Ch. 3. 
 
 plain act ot" bankruptcy, yet if he afterwards pays off or 
 
 ccinpounds with all his then creditors, he in that case 
 
 becomes a new man, and will not afterwards be affected by 
 
 it.(l) 
 
 Must not An act of l)ankruptcy, concerned between the bankrupt 
 
 be con- ^j^^] ^]^q petitioninnr creditor, is of no avail against creditors 
 certed. . . " 
 
 not privy nor consentinir to it; for the pi-esumption is, in 
 
 such case, that the petitioning creditor is to have some 
 pecuMar advantage over the other creditors. (2) But a 
 distinction has been lately made at law, between a com- 
 mission founded upon a concerted act of bankruptcy, and 
 a commission sued out at the instance merely of the 
 bankrupt, — the former being held bad, but the latter good 
 until it was superseded. (3) But this distinction is not re- 
 cognised by the Lord Chancellor. (4) It is no objection, 
 however, to an act of bankruptcy, that the trader has been 
 advised to have recourse to it by a friend. (.5) But when 
 the attorney for the bankrupt was also attorney for the 
 petitioning creditor, and recommended the bankrupt to be 
 denied when he called with the petitioning creditor, — this 
 act of bankruptcy was considered fraudulent, though the 
 denial was without the knowledge of the petitioning credi- 
 But parties tor. (6) Notwithstanding, however, a concerted, act of 
 estopped bankruptcy is bad against every one not privy to it, yet 
 by it. all persons, who are parties or privy to the commission of 
 
 it, are wholly estopped from afterwards disputing it. (7) 
 When not And there is a new act of bankruptcy included in the 
 invalid. present statute, viz. the filing of a declaration of insolvency 
 at the bankrupt-office, which is declared to be not invalid 
 
 (1) iSalk. no. Ex parte Brookes, ibid. 257. Ex 
 
 {^) Field \. Bellamy, 'QuW.'^.V. parte Moule, 14 Ves. 602. Ex 
 
 39. Hooper v. Smith, iBl.Rep. parte ^in/Her, 1 Mad, 250. 
 
 441. Bav}ford v. Baron, 2T. R. (5) Roberts V. Teasdale, Peake, 
 
 594. Eyre v. Birbeck, cit. ibid. 27. 
 
 Taj}jjejiden V. Bicrgess, 4 East, 230. (6) Prosser v. Smith, 1 Holt,442. 
 
 (5) Shew V. Williams, 1 Ry. & (7) Bramley v. Miindee, B. N. 
 
 M. 19. P. 39. Allan v. Hartley, 1 C.B.L. 
 
 (4) Ex parte Staff, Buck. 431. 92. Stewart v. Tiichman, 1 Esp. 
 
 Ex parte Grant, 1 G. & J. 17. ; and 108. 1 Bl. 441 . 2 T, R. 594. 4 East, 
 
 see ex parte Prosser, Buck. 77. 250.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY, 43 
 
 by reason of its being concerted between the bankrupt and 
 
 any other person. (1) 
 
 Section II. 
 Of the several Acts of Bankruptcy specified in the Statute. 
 
 The third and ^ve following clauses of the new statute 
 describe what are to be henceforth considered acts of 
 bankruptci/, — including not only those under the former 
 statutes, but also specifying some which were doubted, or 
 which were not in reality acts of bankruptcy, under the 
 former law. They are no less than seventeen in number, 
 besides two others, which are only applicable to members 
 of parliament. Those affecting the general trader are as 
 follows : 
 
 1. Departing the Realm. Enumer- 
 
 2. Being out of the Realm, and remaining abroad. ^^^^ ^f 
 
 3. .Departing from his Divellitig-hoicse. bank- 
 
 4. Otherivise abseyiting himself ^ • * 
 
 5. Beginning to keep his House. 
 
 6. Suffering himself to be arrested for any debt not due. 
 
 7. Yielding himself to Prison. 
 
 8. Siiffering himself to be Outlaiioed. 
 
 9. Procuring himself to be arrested. 
 
 10. Procuring his goods, money, or chattels to be attached, 
 sequestered, or taken in execution. 
 
 11. Making, or causing to be made, either within this 
 realm or elsewhere, any fraudulent Grant or Conveyance of 
 any of his lands, tenements, goods, or chattels. (2) 
 
 12. Making, or causing to be made, any fraudulent Sur- 
 render of any of his Copyhold lands or tenements. 
 
 1 3. Making, or causing to be made, any fraudulent Gift, 
 Delivery, or Transfer of any of his goods or chattels. 
 
 With intent, in any of these cases, to defeat or delay his 
 creditors. 
 
 (l) Section 7. and see post. C2) Sed vide sect. 4. and post.
 
 H OF THE ACT OF BANKRUPTCY. [Cll. 3. 
 
 Enumer- All the above-mentioned acts of bankruptcy are, there- 
 
 ation ot f(j,.g^ jointly made up o^ action cmd intent^ — being in iliem- 
 bank- selves, considered as acts alone, indifferent and equivocal, 
 
 ruptcy. and deriving their character only from the intent that ac- 
 ' companies the act; but these that Ibllow are in themselves 
 
 substantive acts ofbanhruptcij, and where the intent to tlelay 
 
 creditors is wholly immaterial. 
 
 l*. Having been arretted, or committed to Prison, for 
 
 debt, or non-pai/ment of moneij, — and i/iereiqwn lying in 
 
 priso7i for t'lSoenty-onc days. ( I ) 
 
 15. Escaping out of Prison, or custody, after having been 
 so arrested, committed, or detained; the act of bankruptcy in 
 this case to relate back to the tine of such arrest, commit- 
 ment, or detention. (2) 
 
 16. Filing a declaration in the (fffice of the secretary of 
 bankrupts, signed by himself, and attested by an- attorney or 
 solicitor, that the party is Insolvent, or unable to meet his 
 engagements. (3) 
 
 17. After a docket struck, paying money, or giving or 
 delivering any satisfaction or security Jor his debt, or any 
 part thereof, to the person striking the docket, Vihereby such 
 person may receive more in the pound in respect of his debt, 
 than the other creditors. (4) 
 
 To the above may be added another act of bankruptcy, 
 specifically declared to be such by the last Insolvent Debtor's 
 Act, (the 7 G. 4. c. 57. s. 13.) (5) namely, fling a petition 
 by an insolvent to take the benefit of that act. 
 
 Having thus enumerated all the acts of bankruptcy af- 
 fecting the general trader, it is now proposed to consider 
 each of them separately, for the purpose of examining how 
 
 (l") Sect. 5. By the former law, last of the numerous acts of par- 
 
 the time was two months ; and see liament on this prohfic subject ; 
 
 post 55. for the more ilill descrip- which has given birth to no less 
 
 tion of this act of bankruptcy. than ten voluminous statutes with- 
 
 (2) Sect. 5. in the last sixteen years. There 
 
 (3) Sect. 6. really appears to be no end of 
 
 (4) Sect. 8. legislation on insolvency. 
 
 (5) This, it is to be hoped, is the
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 45 
 
 those which were previously in operation have been sever- 
 ally construed by the various decisions of our courts. 
 
 And first, as to Depavtiiig the Realm, whereby a man Departing 
 withdraws himself iVom the jurisdiction and coercion of Realnu 
 the law of his own country. Whenever a trader hath en- 
 deavoured in such manner to avoid his creditors, or evade 
 their just demands, this has uniformly been declared by 
 the legislature to be an act of bankruptcy. For in this 
 extra-judicial method of proceeding, which is allowed 
 merely for the benefit of commerce, the law has always 
 been extremely watchful to detect a man, (whose circum- 
 stances are declining,) in the first instance, or at least as 
 early as possible, that the creditors may receive as large a 
 proportion of their debts as may be ; and that the trader 
 may not go on wantonly wasting his substance, and then 
 claim the benefit of the statute, when he has nothinii left to 
 distribute. (1) And this observation, indeed, a}))ilies to 
 every other act of bankruptcy, as well as to the one now 
 under consideration. Slight evidence, of the intention to Slight evi- 
 defeat or delay his creditors, will be sufficient to accompany [T'^^j-^ 
 the proof of departing the realm, if it appear that creditors necessary, 
 are in fact delaijed, and that such delay was the inevitable ^^ ?"|^';" 
 consequence of the departure; for it is a principle in law, intention 
 that every one must be supposed to foresee and intend inferred 
 what is the necessary consequence of his own acts (2) ; as, Tgt^" ju 
 indeed, it is frequently holden in criminal cases, that the necessary 
 
 plain and palpable consequences of an act done, are, when '^''"'^" 
 ' _ ' ' _ 1 ' ' quence or 
 
 unexplained, evidence of malice or a felonious intent- departure. 
 
 Therefore, where a trader fled beyond seas for the murder 
 
 of his wife, whereby his creditors were delayed, he was 
 
 held to have committed an act of bankruptcy. (3) So, 
 
 where a married man ran away with a young lady, and 
 
 took her abroad, where he continued to live with her, and 
 
 his creditors were thereby delayed in the recovery of their 
 
 (1 ) 2 Bl. Com. 477. Per Gibbs C. J. Holroyd v. White- 
 
 (2) Per Loi-d Ellenboroiigh, head, 2 Camp. 5.30. 
 Raniibottom v. Leim, 1 Camp. 280. (3) Woodier^ case, Bull. N.P.59.
 
 46 
 
 or THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Deporting 
 the Realm. 
 
 When 
 motive 
 may be 
 collected, 
 &c. 
 
 Leaving 
 England 
 for Ire- 
 iand. 
 
 Advertis- 
 ing his in- 
 tention to 
 go abroad. 
 
 debts, — this was also held an act of bankruptcy. (1) In 
 both these cases it will be observed, that the parties went 
 abroad under circumstances, that rendered it highly jn'o- 
 bable they had conceived the intention not to return to this 
 country; one having committed murder, and the other 
 being also amenable to the laws of his country for a dif- 
 ferent offence. 
 
 When the departing the Realm is of itself equivocal as 
 to the intention, the motive may be collected from the sub- 
 sequent letters written by the part}' during xhe early part 
 of his residence abroad ; though the declarations of a 
 bankrupt, respecting his motive for doing a particular act, 
 are not receivable in evidence, when made long subsequent 
 to the act in question. (2) 
 
 If a trader, whose house of business is in Ireland, comes 
 to England to settle his affairs, and upon being informed 
 that one of his creditors intends to arrest him, quits 
 England and goes over to Ireland, in order to avoid such 
 arrest, — this has been held to be such a departing of the 
 realm, as is sufficient to constitute an act of bankruptcy. (3) 
 But if he leaves England with an honesi; intention, com- 
 patible with trade, and bojid Jide intending to return, he 
 does not, then, by his departure, commit an act of bank- 
 ruptcy. (4) So where a trader quitted his residence at 
 Liverpool, and went to Rio Janeiro, having first circulated 
 an advertisement, that he was going out there in a parti- 
 cular ship, with an intention of settling there, and would 
 take charge of any shipments by such vessel, — he was held 
 not to have committed an act of bankruptcy ; for he would 
 never have circulated such an advertisement, if his inten- 
 tion had been to conceal himself from his creditors. (5) So 
 a trader, having business both in England and in Spain, has 
 
 (1) Raikcs y. Porcmi, 1 C. B. L. (.j) Williams v. Nunn, 1 Taunt. 
 75.; and see Vernon v. Hankey, 270. 
 
 1 C. B. L. 98. (4) Windham v. Patersnn, 1 Star, 
 
 (2) Raivson v. iJa/g/«, 2 Bing. 99.; 144. 
 
 and see Ex parte Hague, 1 l^'ose, (5) Ex parte Osborne, 1 Rose, 
 151. Windham v. Pater son, \^t?^r. 587.; and see Hopkins v. Ellis, 
 H4. iSalk. MO.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 47 
 
 a right to go to the latter country to look after his con- When fear 
 
 cerns: and thouirh his creditors in tl)is case may be therebv ^''"'^st 
 . J w co-oper- 
 
 delayed, yet his departure cannot be construed to be an act ates. 
 
 of bankruptcy. But if he is actuated also by the fear of 
 arrest, — though such fear concurs with the justifiable mo- 
 tive, namely, that of looking after his business, — then the 
 departure will be an act of bankruptcy. (1) 
 
 2. Bemg out of the Realm and remaining abroad. This is BeinT out 
 
 a new and distinct act of bankruptcy, created by the pre- "^ ^'^'^ 
 
 1-11 Trti *i I 1 .• 1 Realm, Sec. 
 
 sent statute, and will save son)e dim^ulty that has Frequently 
 
 occurred, as to the proof of intention in departing the 
 
 Realm; for there will be no need now, as there was in 
 
 former cases, when the party remained some time abroad, 
 
 to infer an intention for his departure, which perhaps never 
 
 minified with the original motive ; nor to construe a con- 
 
 tinned into a pre-determined absence. (2) The intention Intenti 
 
 ion. 
 
 of the party to dclaij his creditors, however, must be col- ''°^^ ^'^ ^'^ 
 
 CollGCtGcl. 
 
 lected, in proving this act of bankruptcy, from the same cir- 
 cumstances, as are applicable to the j)roof of the preceding 
 one. Thus, if a trader, after departing the Realm in the first 
 instance for a proper object, protracts his residence abroad 
 for an unreasonable length of time, assigning no cause 
 for his absence, and leaving 710 funds, nor making any ai*- 
 rangements in this country for the payment of his debts; — it 
 will not be a very hard construction of his conduct, to infer, 
 that he " remains abroad with intent to delay his creditors." 
 
 (1) Warner v. Barber, 1 Hult, note g.) question the correctness 
 Vi5. of this decision, on the ground, 
 
 (2) See Ex parte Mutrie, 5Ves. that an act of bankruptcy' could 
 576. Windham v. Patcrson, 1 Star, not then be committed abroad. 
 144. 4 Camp. 286. Ex parte 0^- But it is submitted, that the ais^Hce 
 borne, 1 Rose, 5S7. 1 V. & B. 177. from England, and not any po- 
 Ex parte Giihton, lAtk. 193. In sitive act committed abroad, was 
 Windham\.Paterson,4C^m\).2S6., the gist of the act of bankruptcy 
 Lord Ellenborough held, that a in that case; and that it might with 
 continued residence abroad was an equal reason be contendedj that 
 act of bankruptcy under the words departing the realm was an act of 
 " otherwise absenting himself," in bankruptcy committed abroad; for 
 the 1 Jac. I. c. 15. ; but the learned the act of departure is not strictly 
 reporter in a note to the case, as consummated, until the party ac- 
 well as Mr. Eden, in his late trea- tually reaches some point out'oi 
 tise on the Bankrupt Law (p. 16. British jurisdiction.
 
 48 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Departing 
 from 
 dwelling- 
 house. 
 
 Departure 
 must be 
 voluntary. 
 
 Where 
 delay the 
 necessary 
 conse- 
 quence of 
 departure. 
 
 If inten- 
 tion clear, 
 no actual 
 delay ne- 
 cessary. 
 
 3. Departing from his Dwelling-house. In this case, as 
 in that of (leparting the reahn, the intention must be to de- 
 feat or delay his creditors. This intention may also, as in 
 that, be manifest, or collected from circumstances, or it 
 may be presumed from the necessary consequences resulting 
 from the departure. The departure must be voluntary^ 
 and not conijnilsory ; for, where a man is arrested, and 
 thereby obliged to leave his house, such a departure is not 
 an act of bankruptcy. ( 1 ) But when a trader, from distress 
 of mind, or any other motive, quits his dwelling-house 
 without any intention to return, and without leaving di- 
 rections how his business is to be carried on in his absence, 
 and creditors are thereby in fact delayed, — he must in such 
 case, as has been before observed, be taken to foresee and 
 intend the necessary consequences of his own act, whatever 
 the original motive may have been for his departure. (2) 
 
 If it is quite clear that the intention is to avoid his cre- 
 ditors, then it will be immaterial whether any creditor was 
 delayed in his absence or not. This point, which was 
 often mooted under the former bankrupt laws (3), had, 
 nevertheless, been settled by several cases (4-) before the 
 passing of the new statute ; but the words of this statute 
 are also sulKciently declaratory, that the departure of 
 itself, coupled with the intent, constitute a perfect act of 
 bankruptcy. The fact of creditors being delayed may still 
 be properly resorted to in evidence, for the purpose of ex- 
 plaining an act, which might otherwise be equivocal ; but 
 where the intention is manifest, no actual delay need be 
 proved. And this observation applies, not only to this 
 particular act of bankruptcy, but to all the others specified 
 in the third section of the statute. 
 
 (1) Phillips V. Sheriff of Essex, 
 1 C.B.L. 85, 
 
 (2) Holroi/dv. Whitehead, 3 Camp. 
 530 
 
 (3) Barnard v. Vaughan, sT. R. 
 i 49. 
 
 (4) Robertson v. TAddell, 9 East, 
 487. Hammond v. Hides, 5 Esp. 
 139. Williams \. Niinn, 1 Taunt. 
 270. Wilson V. Norman, 1 Esp. 
 334. Hotroydw. Whitehead, supra. 
 Ex ^tLViQ W^djovm, l4Ves,84. ,
 
 eCt.S.J OF THE ACT OF BANKHUFTCY. ^ 
 
 The distance that a man departs to, after leaving his dwel- Departure^ 
 ling-house, or the period of time that he is absent from it, are •/•'^°'\ "'^ 
 
 also perfectly immaterial, if the real motive is concealment 
 
 from his creditors. His going to a distant place among ^^^^?^^^> 
 strangers may be an act of bankruptcy, though he is visible absence, 
 there; and the going only to the next house, may also be the *™™^ 
 same, if he is not visible. (1) Thus where a man rode out of j^otives. 
 town in order to avoid being arrested, and returned in the 
 evening, and the next morning sent for the bailiff, and told 
 him he went out in order to get the term of the plaintiff, — 
 this was held to be such a departing from the dwelling- 
 house, as was sufficient to constitute an act of bank- 
 ruptcy. (2) So where a trader went to his neighbour's 
 house, and told him he expected every moment to be ar- 
 rested, and, while he remained there, was informed that a 
 sheriff's officer was going towards his house, upon which 
 he concealed himself in a back room, desiring his neighi- . 
 bour to watch, and when told that the officer had gone 
 past his house, and had left the street, immediately then 
 returned home, — this temporary absence from his dwelling- 
 bouse was held to be an act of bankruptcy (3); and indeed 
 it would make no difference if his departure from his 
 dwelling-house had proceeded from a groundless apprehen- 
 sion of being arrested. (4) In such a case it is not neces- 
 sary, in order to prove the act of bankruptcy, to show that 
 any ivrit had in fact issued against the bankrupt. (5) And 
 if a trader, on being applied to for payment by a creditor, 
 leaves his house under pretence of getting money, but 
 goes to a billiard-table, and remains there the whole even- 
 ing, — this has also been held an act of bankruptcy. (6) 
 
 In all these cases we have seen, that the departure from What is 
 the dwelling-house has originated from the fear of meeting ^f ijank-'^ 
 
 (1) PerBullerJ. Aldridge \ . Ire- (4) Ex parte Bamford, 15Ves. 
 land, cit, 1 Taunt. 273. 449. 
 
 (2) Maylin v. Eyhe, 2 Str. 809. (5) Wilson \. Norman, 1 Esp. 
 (5) Chenowelh v. Haley, 1 M. & 334. 
 
 S.676.;andsee Bayleys.Schofield, (6) Bxgg v. /S^pooM^r, 2 Esp. 6,51. 
 iM. &S. 338. 
 
 ruptcy.
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch.3. 
 
 Departure 
 from dwcl- 
 ling-hoiise. 
 
 When 
 motive 
 laudable, 
 delay im- 
 material. 
 Leaving 
 home to 
 recover a 
 debt, 
 
 or to ar- 
 ranj^e with 
 a creditor, 
 leaving 
 word 
 where he 
 is gone; 
 
 or for any 
 other law- 
 ful pur- - 
 pose, leav- 
 ing word, 
 &c. 
 
 a creditor, the apprehension of being arrested, or from 
 some desire of concealment, in consequence of the trader's 
 embarrassments. 
 
 But where it is clearly not his intent in going from home 
 to defraud or delay his creditors, but his motive is laudable, — 
 as if he departs on a journey for the purpose of getting in 
 money owing to him, — he does not thereby commit an act 
 of bankruptcy, though his absence is actually productive 
 of delay to some of his creditors. Thus where a trader at 
 Manchester^ receiving intelligence that a debtor of his in 
 .London was in a failing condition, left his house, and 
 went to London, for the purpose of arranging his affairs 
 with his debtor, and getting security for his demand, — he 
 was held not to have committed an act of bankruptcy, — 
 though he stayed away ten days, and several of his cre- 
 ditors in his absence called at his house at Manchester for 
 payment of their debts, and went away unsatisfied, from no 
 provision being made for payment of them ; for it was con- 
 sidered, that his intention in going from home was not to 
 delay his creditors, but for the purpose of obtaining money 
 to prevent their being delayed. (1) So where a female 
 trader left her house at Bath, for the purpose of persuading 
 one of her creditors in London to withdraw an execution 
 against her stock, and previously told her servants "dohere 
 she tvas going, as well as the object of her journey, — and 
 also left with them her direction, for any person who might 
 inquire for her; — this again was held to be not an act of 
 bankruptcy; as there appeared to be no wish to keep out of 
 the way of her creditors, who had only to call at her house 
 to know where she was. (2) 
 
 And the leaving home bondjide for exercise, or enter- 
 tainment, or any other lawful purpose, is not an act of 
 bankruptcy, notwithstanding a creditor may in the interim 
 
 (1) Foiuler v. Padget, 7 T. R. 1 Taunt. 273.; but see JDeJle v. 
 509. Desanges, 8 Taunt. 671. 3 Moore, 
 
 (2) Aldridge v. Ireland, cit. 7. post.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. S.% 
 
 call in vain for his debt. ( 1 ) Thus, where a man goes Departure 
 
 from home, leaving word with his clerk luhat time the same /'■°"*/"'^^- 
 1 hng-house. 
 day he shall return home, and actually does return at the 
 
 appointed time, — this is not an act of bankruptcy, though a 
 creditor called for money in his absence, and his clerk, by 
 his directions, told the creditor that he would not let him 
 have it, and that he should go out of the way till dinner- 
 time ; for a man, who intends to delay a creditor, does not 
 usually name the hour when he is on the same day to be 
 met with at home. (2) So, if he absents himself from his Leaving 
 house in order to avoid harsh language from some of his ^^^ ^U 
 creditors, whom he had appointed to come to his counting tercation. 
 house, and examine his books ; for the motive was not to 
 delay the creditors, but to avoid altercation with them. (3) 
 
 It is laid down in some of the books (4), that there is a Abscond- 
 difference between absconding to avoid a deht, and ab- a"oida 
 sconding to avoid a duty only ; and that a departure, occa- duty, 
 sioned by the fears of being attached for the non-perform- 
 ance of an aiijard, or to avoid an arrest upon a writ of 
 excommunicato capiendo, is not an act of bankruptcy. But 
 this position, it is apprehended, must now receive some 
 qualification ; for if the absence is iiidefinite, and no pro- 
 vision is made for payment of debts, nor any directions left 
 for creditors 'where he may be found by them, such a 
 departure would now be held to fall within that class of 
 cases, which establish that a man is taken to intend, what is 
 the necessary consequence of his own acts. (5) 
 
 4. Otheruoise Absenting himself. Where a man has a Otherwise 
 
 counting- house distinct from his dwelling-house, and leaves ^f^^''(^'Ǥ 
 1 n • 1 • 7- I 1 1 hmself. 
 
 the former without the animus revertendi ; though he may 
 
 remain afterwards two or three days at his dwelling-house, 
 
 he begins to absent himself from the time he leaves his 
 
 counting-house ; and the act of bankruptcy is complete by 
 
 (1) Per Lord Ellenborough, (3) Ibid. 
 
 9 East, 492. Robertson v. Liddell. (4) Lingood v. Fade, 1 Atk. 196. 
 
 (2) Vincent v. Prater, 4 Taunt. 2 Com. Dig. 5. 
 603. (5) Ante, page 45. 
 
 E 2
 
 ^ 
 
 OF THE ACT OF BANKHUPTCY. 
 
 [Ch. 3. 
 
 Otherwise 
 
 absentins. 
 
 Where he 
 has no 
 settled 
 home. 
 
 Retiring 
 behind the 
 scenes of 
 a theatre. 
 
 Conceal- 
 ing hinaself 
 ia the 
 house of 
 a friend. 
 
 Not where 
 
 absence 
 
 concerted. 
 
 such departure from it. (1) Indeed, it may frequently 
 happen, that a trader has neither dwelling-house, nor 
 counting-house, — in which case his withdrawing himself 
 from the usual place where he is to be found, or where he 
 transacts his business, will be sufficient to constitute an act 
 of bankruptcy, within the meaning of the words " other- 
 ivise absenting himself," — which are not confined to any 
 particular place. Therefore, if a man, who has no settled 
 home, takes up a temporary abode at a public-house in 
 the town to which his business carries him, and leaves it 
 for fear of his creditors, — this will be considered an act of 
 bankruptcy. (2) So, if a man, who has no known place 
 of abode, is in the habit of attending the Royal Exchange 
 to transact his business, and leaves it on the approach of 
 his creditors, desii'ing a friend to say he is not there ; or 
 breaks an appointment he has made with a creditor to meet 
 him there to pay his debt — either of these cases will be an 
 act of bankruptcy. (3) So also, where the proprietor of a 
 theatre retired behind the scenes to avoid a sheriff's officer, 
 giving orders at the same time to be denied to him, — this 
 was held to be such an absenting himself, as would come 
 within the meaning of the present statute. (4) And if a 
 man, after being arrested for debt, escapes to the house of 
 another person, and is there denied to the officer who pur- 
 sues him, — this will also be an act of bankruptcy. (5) But 
 where a trader, being informed by the attorney of the pe- 
 titioning creditor, that he had delivered a warrant to a 
 sheriff's officer to arrest him, and the attorney advised him 
 to repair to his office to avoid the publicity of being arrested 
 in the street, which he did, and remained there a con- 
 siderable time, — this was holden not an act of bankruptcy ; 
 
 (1) Judine v. Da Cossen, 1 N. 
 R. 234. There is a case of Yoiing 
 V. Wright, 6 Taunt. 540., usually 
 referred to upon this head ; which, 
 however, seems to establish no 
 satisfactory position. 
 
 (2) Holroydv. Giuynne, 2 Taunt. 
 116. 
 
 (.3) Gimmingham v. Laing, 
 2 Marsh. 236. 6 Taunt. 552. 
 
 (4) Ibid, 
 
 (5) Bat/ley v. Schofield, 1 M. & 
 S.358.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 53 
 
 though if the recommendation had not been by the attorney Keeping 
 of the petitioning creditor, the case would perhaps have "^^' 
 borne a different complexion. (1) A mere breacli of en- 
 gagement also, to meet a creditor at a given place is not, in 
 itself evidence of an act of bankruptcy, without proof that 
 the absence was with a view to delay the creditor. (!2) 
 
 Where two partners left their shop, and told their shop- Leaving 
 
 man that they were goinff out to endeavour to get some ^^^P' ^"^ 
 
 desiring a 
 bills discounted, and directed him to say that they were servant to 
 
 not in the way, or to make some excuse for them in case a "'^ke 
 
 GXCUSG 
 
 creditor should call; and a jury found that they absented 
 themselves with an intent to delay their creditor, the Court 
 of Common Pleas held they were warranted in such con- 
 clusion. (3) 
 
 5. Beginning to Keep House. This act of bankruptcy is As to ne- 
 generally made out, by proving the party to have been de- cessity of 
 nied by his own orders to a creditor, who calls for payment 
 of his debt, the party himself being at home at the time. 
 The mere denial, however, is not of itself the act of bank- 
 ruptcy; h\xt o\\\y prima facie evidence of the party keeping 
 his house, with intent to delay his creditors ; and this may 
 be proved in many other ways, besides being denied to a 
 creditor ; though it seems to have been for some time held, 
 that an actual denial was indispensable in proof to establish 
 this act of bankruptcy. (4) But as it is the intent to delay, 
 and not the actual delay, which must accompany the begin- 
 ning to keep house, — there is no obligation to prove that 
 the intention was effected, if there are circumstances enough 
 to show, what the intention really was. Therefore the 
 intention of keeping house being clearly proved by other 
 evidence, there is no necessity to superadd the proof of 
 denial to a creditor ; a species of evidence, indeed, which 
 
 (1) MUls\. Elton, 3 W\. 142. (4) Garratt v. Mode, 5T.R. 
 
 (2) Tucker v. Jones, 2 Bing. 2. 575. Hawkes V. Saunders, C. B. L. 
 (5) Deffle v. Desanges, 8 Taunt. 74. 
 
 67 1 . Coppery. Desanges, 3 Moore^ 4. 
 
 E 3
 
 54- 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Keeping 
 house. 
 
 Cases of 
 Denial. 
 
 Must be 
 by pre- 
 vious di- 
 rections, 
 
 and to a 
 creditor, 
 whose 
 debt is 
 due. 
 
 need never be resorted to, except for the purpose of ex- 
 plaining conduct that might otherwise be deemed equivocal. 
 For instance, — if a trader gives general orders to be denied, 
 then the fact of a creditor calling and being denied will be 
 important evidence, not only of the beginning to keep 
 house, but also to show what the intention of the party was 
 in jrivino; such orders. Or, if he direct his servant to deny 
 him to some individual by name, — then it will be essential 
 to prove that that individual was a creditor; and if there 
 is no other evidence of keeping house, then that such per- 
 son actually called and was denied. Thus the necessity of 
 provin<T an actual defiial to a creditor occurs only, where 
 there is otherwise no evidence of keeping house, or of what 
 the intention of the party is in keeping house. Where it is 
 said, therefore, in some of the books (1), that there must be 
 an actual denial^ as well as an order to deny, to constitute 
 an act of bankruptcy, this must be understood to apply to 
 cases, where there is 7io other proof of the party beginning 
 to keep house. 
 
 But it is proposed to consider first the cases, where the 
 denial to a creditor forms the principal ingredient in the 
 proof, of the party beginning to keep house, before we 
 treat of those, where other circumstances have been ad- 
 mitted, to establish this particular act of bankruptcy. 
 
 In the first place, the denial must be in consequence of 
 ■previous directions from the debtor; for, unless it is so, no 
 subsequent approbation of it by him will render it an act of 
 bankruptcy. (2) The denial, too, must be to a creditor, 
 whose debt is then due ; for if he is only a creditor by a 
 note payable at a future day, a denial to such a creditor 
 will not be an act of bankruptcy (3) ; since, no creditor can 
 be said to be defeated, or delayed, in the recovery of a debt, 
 where there is no debt which he can legally demand the 
 payment of. In such a case, however, it is conceived, if 
 
 iX) Jachviory.Nighlmgale^'^vW. (3) 7 Vin. Ab. 61. pi. 14. Ex 
 N. P. 40. 1 C. B. L. 79. parte Levy. 
 
 (2) Ex parte Foster, 1 Rose, 50.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 55 
 
 the order to be denied was given under an apprehension, Keeping 
 that oi/ier creditors^ whose debts were due, would call, — then "^^' 
 the actual denial, being proof (at all events) of keeping 
 house, would, coupled with proof of the intent of the party 
 in ordering himself to be denied, constitute, as it should 
 seem, a perfect act of bankruptcy. 
 
 The better opinion seems to be, that the denial need not Denial 
 be to the creditor himself ; but that it will be sufficient, Je^to"he 
 if made to the clerk of the creditor, or any other person creditor 
 coming on his behalf, and by his authoi'ity, to demand the '"'"^'"y • 
 debt, — upon proof that the trader knew him to be such clerk, 
 or agent (l); though Lord Camden, at Nisi Prius, once 
 held the conti'ary. (2) So a denial to a tax-gatherer, who to a tax- 
 calls for taxes, is also an act of bankruptcy; for the tax- gatherer; 
 gather is an agent on behalf of the crown, and the crown 
 cannot be said, in this instance, not to be a creditor. (3) 
 So also a denial to the collector of the church and highway to col- 
 rates will be an act of bankruptcy, for he may be equally church- 
 considered a creditor, — the debt in this case being created rates. 
 by the assessment, and when the assessment is made, the 
 debt then becoming due and demandable. (4) And whether Imma- 
 the creditor calls for payment of his debt, or security for it, ^f"^ " 
 or to buy goods to the amount in order to cover it, — a de- ditor calls 
 
 nial will be equally an act of bankruptcy ; for the statute P^^" 
 
 11 7- /- 7 • ment, or 
 
 does not contemplate the object of the creditor in calling, satisfac- 
 
 but the i?itetitio}i of the debtor in being denied. (5) But *'°"" 
 if the trader knows, that the creditor is coming upon some 
 other business, and not for payment or satisfaction of his 
 debt, and refuses to see him, — then, the moment his know- 
 ledge of that purpose is proved, his intention to delay 
 will be negatived. (6) And it has been ruled at Nisi Prius, Denial to 
 that a denial to a bailiff, who had previously arrested the ^ ^^'hff 
 
 (1) Brandey v. ATundec, B. N. (4) Lloyd v. Heathcote, 2 Brod. 
 P. 39. Exparte 5anj/or<^, 15 Ves. & B. 388. 5 Moore, 129. 
 
 449. (5) Ex parte Harris, 2 Rose, 67. 
 
 (2) Barrow v. Foster, C. B. L. Ex parte White, 3 Ves. & B. 128. 
 83. (6) Ibid. 
 
 (3) Jeffs v. Smith, 2 Taunt. 117. 
 
 E 4 
 
 arrest j
 
 56 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Keeping 
 house. 
 
 to persons 
 whom the 
 servant 
 believed 
 creditors ; 
 
 where cre- 
 ditor does 
 not ask to 
 see the 
 bankrupt. 
 
 No objec- 
 tion that 
 t 
 was seen, 
 when de- 
 nied. 
 
 Need not 
 be the 
 party's 
 own dwell- 
 ing-house. 
 
 party, and released him on his undertaking to give bail, is 
 not an act of bankruptcy, — on the ground, that the denial 
 is not to avoid a creditor, but merely to avoid the execu- 
 tion of a bail-bond. ( 1 ) 
 
 A denial to several persons, whom the servant of the 
 bankrupt, from their frequent calling, believed to be cre- 
 ditors, is evidence to go a jury to say whether they were 
 creditors or not. (2) 
 
 A denial to a creditor, though he demands payment of 
 his debt, — yet if he does not ask for the debtor, or express 
 a wish to see him personally, it has been said, is incomplete 
 proof of the party keeping house. (3) But such a trans- 
 action does not in fact amount to a denial ; for where 
 there is no request to see, there can be no deyiial to be 
 seen. The circumstance, however, of the creditor calling 
 for his debt would go far to explain the intention of the 
 party in giving orders to be denied, — and, with very slight 
 evidence of keeping house, would probably be sufficient to 
 establish an act of bankruptcy. 
 
 It is no objection to the proof of beginning to keep 
 house, that, when the trader was denied, he was actually' 
 seen by the creditor through the window of a partition, 
 and was heard giving directions to be denied. (4) 
 
 The fact of keeping house is not construed to mean 
 strictly his oiX)n dwelling-house ; for, it is held, if a man 
 have no house of his own, and keep in another man's 
 house, — that would be within the meaning of the statute; 
 and the same, when a party keeps on ship- board, — or if a 
 miller keep himself within his mill, — or a churchwarden 
 within his church. (5) Accordingly, where a trader, carry- 
 
 (l) Schooling V . Lee, sSta. 151. (2) Jameson v. Earner, 1 Esp 
 Bed qucere, whether such a denial 
 ought not to be construed with an 
 intention to delay a creditor; and 
 whether it does not fall within the 
 principle of that class of cases, in 
 which it is held, that a party, keep- 
 ing out of the way to avoid an 
 arrest, coniniits an act of bank- 
 ruptcy? 
 
 (2) Jameson 
 381. 
 
 (.3) Dudley v. Vaughan, 1 Camp. 
 271. 
 
 (4) Ex parte Bamford, l.^Ves. 
 449. 
 
 (5) Com. Dig. "Bankrupt," c.i. 
 CuUen, 37. 
 
 " .s-v 1!
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. B 
 
 ing on business at Warwick, came occasionally to London Keeping 
 to make purchases for his trade, and while in London was °^^' 
 
 frequently at the counting-house of a correspondent, where 
 other'persons were in the habit of calling upon him, — it was 
 held, that his desiring his correspondent to deny him to a 
 creditor, whonj he expected to call, and concealing himself 
 in his correspondent's house when the creditor did call, was 
 such a beginning to keep house, as amounted to an act of 
 bankruptcy. ( 1 ) 
 
 In a recent case at Nisi Prius, indeed, it is laid down, 
 that a creditor has a right to call on his debtor iiohere he 
 pleases^ to demand payment of his debt, — and that a denial 
 to a creditor at any place^ though not the bankrupt's usual 
 place of business, was equally an act of bankruptcy. (2) 
 But it is apprehended that this proposition is laid down 
 too broadly to stand the strict test of examination ; and 
 that the denial must be at a place, which was then either the 
 bankrupt's place of residence, or that of his common re- 
 sort, — or one, at least, where he had appointed a creditor 
 to meet him, or where he had taken a temporary shelter for 
 the purpose of concealment. 
 
 When the party has once been denied by his own orders "When 
 
 to a creditor, with a view to delay him, though the creditor o"^^.^^ 
 
 •' ' o creditor 
 
 is delayed but for one hour, and is in fact afterwards ad- denied, 
 mitted in consequence of his importunity (3), — the denial period of 
 will nevertheless be an act of bankruptcy. Thus where a material • 
 trader denied himself at nine in the morning to a creditor 
 presenting a bill for payment, — though he afterwards in 
 the course of the day appeared in public, and paid the bill 
 he^ove Jive o'clock in the afternoon, — this was held to be an 
 unequivocal act of bankruptcy, which could not be ex- 
 plained away by subsequent circumstances. (4) So where or that the 
 
 a trader gave a general order to be denied, and was in intention 
 ^ ^ 'was to be 
 
 (1) Curte'is V. Willis, 1 Ryan & (s) Woodv.Thwaites,3'E.i^.24.5. 
 M. 58. Dowl. & R. 224. (4) Colkett V. Freeman, 2 T. R, 
 
 (2) Park v. Prosser., 1 Carring. 59. 
 \16,
 
 5» 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Keeping 
 house. 
 
 denied to 
 a different 
 creditor. 
 
 Denial 
 capable of 
 being ex- 
 plained by 
 circum- 
 stances. 
 
 whilst at 
 dinner. 
 
 On a 
 
 Sunday. 
 
 But after 
 general 
 orders to 
 deny, can- 
 not be 
 explained. 
 
 Where 
 denial by 
 the wife. 
 
 consequence denied to a particular creditor, whom it was 
 not his object to he denied to^ though he immediately 
 overtook the creditor, and said he was not afraid of him, 
 but of a«o///6';- creditor; this was held also such a begin- 
 ning to keep house as was sufficient to constitute an act of 
 bankruptcy. (1 ) 
 
 There are many acts of denial, however, even to a cre- 
 ditor, vi'hich may be explained by circumstances to show 
 that there was wo intention to delay the creditor, but that 
 the denial proceeded from another motive; — such as being 
 engaged with company or business, by a temporary retire- 
 ment and privacy during a period of sickness or domestic 
 affliction, or during the ordinary hours of sleep or re- 
 freshment. (2) Thus where a creditor had been in the 
 habit of calHng whilst the trader was at dinner, who told 
 his servant that the creditor was troublesome in calling for 
 money at that hour, and desired he might be denied to 
 him ; — and the creditor called twice afterwards, when the 
 trader was denied, but was accessible to all his other cre- 
 ditors at business hours, — this was held to be not an act of 
 bankruptcy. (3) Neither is it an act of bankruptcy for a 
 man to cause himself to be denied on a Sunday, notwith- 
 standing the creditor may have been even appointed to call 
 on that day for the express purpose of receiving his 
 money. (4<) 
 
 But where a trader has once given a general order to be 
 denied to creditors, it will be no excuse that he happens to 
 be ill in bed, when a creditor afterwards does call for his 
 debt ; for the denial in this case will be referable to his 
 previous orders, and not to his sickness as the cause. (5) 
 Where the trader is denied by his wife, though the wife 
 
 (1) Mucklow V. May, 1 Taunt. 
 479. 
 
 (2) Ex parte Hall, 1 Atk. 201. 
 Field V. Bellamy, B. N. P. 59. Ex 
 parte Preston, 2 Rose, 21. 1 Burr. 
 484. Stafford v. Clarke, 1 Carringt. 
 N. P. Rep. 159. 
 
 (3) Smith V. C'j^mc, 5 Camp. 349* 
 Shaiv V. Thompson, 1 Holt. 1 59. 
 
 (4) Ex parte Preston, 2 Rose,21. 
 2Brod. & B.312. 
 
 (5) Laxarus v. Waithman, 
 5 Moore, 563.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 59 
 
 herself cannot be called to prove the denial, yet other wit- JCeeping 
 
 nesses may prove that her husband gave her orders to ' 
 
 deny him, and that she did actually deny him to some 
 
 creditors who called. (I) 
 
 A denial to a creditor, however, though conclusive evi- Denial not 
 
 dence, if unexplained, of a beginning to keep house, — yet, evidence, 
 
 as has been before observed, it is not the onl^ evidence by 
 
 which this act of bankruptcy can be established. Thus if Keeping 
 
 a man shuts himself up for a month in his bed-chamber, chamber- 
 
 with the exception of Sundays, giving directions merely to 
 
 be denied to every body that called, — this will not only be 
 
 sufficient proof of his Jceepmg Ids house, but of his doing so 
 
 with intent to delay his creditors. (2) So where a mer- retiring to 
 1 1 r 1 • -1 II 11 1 ^ secluded 
 
 chant leit his countmg-nouse where he usually sat, and parlour j 
 
 retired into a secluded parlour, where he drew the curtains 
 to prevent being seen, and during such seclusion several 
 creditors called, who must have seen him had he remained 
 in the counting-house, — such a concealment was held suf- 
 ficient evidence of an act of bankruptcy. (3) So where a debarring 
 trader desired his servants not to let into the house any per- ^'' ^^'^ess 
 sons whom they did not know, for fear of being arrested, — house; 
 and on the following morning the doors of the house were 
 kept shut, and no person was admitted, until it had been 
 ascertained from the window who he was, — it was held that 
 this amounted to an act of bankruptcy, though no creditor 
 was actually denied. (4) If the trader, also, has no clerk 
 or servant, — as the act of keeping house cannot then of 
 course be evinced through the medium of a denial, — it 
 will be amply proved, in such a case, if he shuts himself 
 up in his house, debarring all access to it, whereby his 
 creditors are delayed. And, indeed, it may be laid down or seclud- 
 
 generally, that wherever a trader secludes himself in his ^"g ^im- 
 
 ^ "" self. 
 
 (1) Lloyd V. Heathcote, 2 B. & 271. Cfl!.?^<?//'s bankruptcy cit. per 
 B. 388. 5 Moore, 1 29. Bayley J., l M. & S. 354. 
 
 (2) Bayley v. Schofield, 1 M. & (4) Harvey v. Ramsbottom, 1 B. 
 S. 349. Lloyd V. Heathcote, supra. & C. 55. 
 
 (5) Dudley v. Vaughan, 1 Camp.
 
 60 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Keeping 
 home. 
 
 only going 
 out in tlie 
 evening. 
 
 Banker 
 
 stopping 
 payment. 
 
 house, to avoid the fair importunity of his creditors, who 
 are thus deprived of the means of communicating with 
 him, — lie begins to keep house within the meaning of the 
 statute. (1) 
 
 There may also be circumstances in a man's conduct 
 where he has given no orders to be denied, and where 
 there is not proof of a complete seclusion, which will 
 amount to an act of bankruptcy under this head of begin- 
 ning to keep house. As where a trader, whose counting- 
 house was in a town, and his dwelling-house in the country, 
 did not go to his counting-house, nor into the town, — but 
 sent for his papers to be brought to his dwelling-house, 
 and only went out for the purpose of taking an evening 
 walk in the country ; — Lord Eldon said there was no doubt 
 but that that sort of keeping house would be an act of 
 bankruptcy. (2) 
 
 A banker sioppitig paijment, or refusing to pay money 
 when called upon for that purpose, does not thereby com- 
 mit an act of bankruptcy, — if he keeps his shop open, and 
 does not conceal himself. (3) And the shutting up a bank- 
 er's shop by one partner, is not an act of bankruptcy in 
 his co-partner residing in another place. (4) 
 
 In all these cases of keeping house, as well indeed as in 
 those o^ departing from his dwelling-house, or absenti?ig him- 
 self, — what the party says to his servant, or any other 
 person, when he leaves his dwelling, or begins to seclude 
 himself, — is receivable in evidence to prove the inten- 
 tion {5); but what he says must be contemporary with, or 
 immediately subsequent to, the act done. (6) 
 
 (1) Per Lord Ellenborough, 
 1 Camp. 272. 
 
 (2) Ex parte Bourne, 16Ves.l49. 
 
 (3) Hopkins V. Grey, 7 Mod. 
 139. Pakenham v. Bland, Ca. in 
 Chancery, in Lord King's Time, 
 42, 43. 7 Ba. Ab. 61. pi. 12, 13. 
 
 (4) Ex parte Mavorj 19 Ves. 543. 
 
 (5) Jameson v. Earner, 1 Esp^ 
 38 1 . Bateman v. Bailey, 5 T. R. 
 512. B. N.P. 40. Ambrose v. Clen- 
 don, Annaly, 267. 4 Esp. 233. WU- 
 son V. Norman, 1 Esp. 334. Robert- 
 son V. Liddell, 9 East, 487. 
 
 (6) Robson v. Kemp, 4 Esp. 231. 
 Marsh v. Meager, 1 Star. 353. j 
 and see post, title " Evidence."
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. H 
 
 6. Suffering himself to he arrested for any debt not due. (1) Stifering 
 The object of this enactment is, no doubt, to provide ^"'"^: 
 against a voluntary submission to an arrest for a fictitious rested, S^c. 
 debt ; but the suffering himself to be arrested upon a bill of 
 exchange not due, or indeed for any debt solvendum in 
 futuro (if the intention is to defeat or delay a creditor) 
 would, it is apprehended, come within the meaning of the 
 statute. 
 
 ?• Yielding himself to Prison. (2) The yielding must Yielding 
 of course be voluntary, and not compulsory, — and the in- ""/^^ 
 tent, to defeat or delay a creditor. But a bond fide surrender 
 in discharge of bail will not come within this act of bank- 
 ruptcy; for that is a duty incumbent upon every defendant, 
 if necessary, to exonerate those who have become sureties 
 for him in the action ; and as the bail have a right to take 
 and render a defendant in their own discharge, (he being, 
 in the eye of the law, already in their custody,) a voluntary 
 surrender would be only doing that which he might be at 
 any time compelled to do by his bail. If a trader, however, 
 who is capable of paying, will, from fraudulent motives, 
 voluntarily go to prison, — that will be an act of bankruptcy. 
 Therefore where a man was arrested for 28/., and, though 
 he had money sufficient to pay the debt, yet chose rather 
 to go to prison, in order, as he declared, to force his 
 creditors to come to a composition, — he was held to have 
 committed an act of bankruptcy. (3) 
 
 8. Suffering himself to be outlawed. (4) An Outlawry in Suffering 
 Ireland will not make a man a bankrupt here, — for that is a"'"^^ 
 considered as an act of bankruptcy committed abroad. (5) lawed. 
 And an outlawry suffered without the intent to defeat or 
 delay a creditor, is not an act of bankruptcy. (6) It is 
 
 (1) This was also an act of bank- (3) Ex parte Barton. 7 Vin. 
 ruptcy by IsEliz. c.lS.and 1 Jac. 1. Ab. 61. 
 
 c. i 5. s. 2. (4) This is also from the two 
 
 (2) This is also taken from the statutes of Eliz. and James, 
 above-mentioned statutes of Eliz. (5) Com. Dig. "Bankrupt," C. 4. 
 and James. (6) Bradford v. Bloodworth, 
 
 1 Keb. 11. 1 Lev. 13.
 
 m 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Suffering 
 outlawry. 
 
 Procuring 
 himself to 
 be arrested. 
 
 Fraudu- 
 lent attack- 
 ment, Sfc. 
 
 laid down by Lord Chief Baron Cotnyns(l), (upon the 
 authorities, as it is presumed, which are cited below (2), 
 but he himself cites no authority for the position,) that the 
 outlawry will not be an act of bankruptcy, if it be reversed 
 before the commission of bankrupt issues, — or if it be re- 
 versed for default of proclamations, even after the commis- 
 sion. There is some qualification, however, as to this 
 last position in Viner, which is not noticed by Comyns ; 
 the passage in Viner being : " if the outlawry be reversed 
 for want of proclamations, all that is done in the mean 
 time by the commissioners is void ; contra, if it was re- 
 versed on a writ of error^^ But this can scarcely now be 
 considered as law; for if the outlawry were suffered fraudu- 
 lently ah initio^ with an intention to defeat or delay a cre- 
 ditor, — no subsequent event would, it is submitted, be suf- 
 ficieut to clear the fraud, or prevent the operation of the 
 Bankrupt law, — any more than a denial to a creditor, once 
 made with intent to delay him, can be explained away by 
 any subsequent circumstances. (3) 
 
 9. Procuring himself to he arrested. This act of bank- 
 ruptcy is taken from the 1 Jac. 1. c. 15. s. 2. Any arrest 
 made by a man's own procurement will come within this 
 head of bankruptcy, — it being immaterial whether the ar- 
 rest is for a real, or a fictitious, debt. 
 
 10. Procuring his goods, mojiei/, or chattels to he attached, 
 sequestered, or taken in execution. This act of bankruptcy 
 is also included in the 1 Jac. 1. c.l5. s. 2., with the ex- 
 ception only of the last words, which have been very pro- 
 perly added in the present statute ; it having been holden 
 under the statute of James that a fraudulent execution, 
 though void as against creditors, was not a procuring of 
 goods to be attached, — which meant only a proceeding by 
 
 foreign attachment in London, or in those other towns 
 where that species of process is used. (4) 
 
 (1) Com. Dig. supra. 
 
 (2) 7Vin. Abr. 61. pi. 10. R. S. 
 L. 186. Stoned Read. 124. 
 
 (o) See ante, 22.; andC.B.L.85. 
 (4) Clavey v. Haylcy, Cowp.427. 
 Harman v. Spottistvood, cit. ibiil.
 
 Sectr. 2.] of the act of bankruptcy. 6S 
 
 An attachment out of any court, for mere dejault or Frmulu- 
 
 laches. would not be an attachment within the meanins: of ^"^^ f ^^"c''- 
 ' , * vicnt. 
 
 the statute ; for such an attachment could not be considered 
 to be with a defendant's own procurement. A sequestra- 
 tion of tithes, also, issued against a person who has a rec- 
 tory inpropriate, for not repairing the chancel of his 
 church, is for the same reason not an act of bankruptcy. (1) 
 And where a trader, hearing that a writ of fi. fa. is 
 issued against him, clandestinely conveyed his goods out 
 of his house, and concealed them privately, in order to 
 prevent them from being levied in execution, — this, it was 
 determined, though a palpable fraud, did not amount to an 
 act of bankruptcy. (2) 
 
 11. Making or causing to he made, either xmthin this Fraudu- 
 
 realm, or elsewhere, any fraudulent Grant or Conveyance of ^^"' ^°"" 
 . '^ ^ ^ J veyance. 
 
 any of his lands, tenements, goods, or chattels. This act of 
 
 bankruptcy is from the 1 Jac. 1. c. 15. s. 2.; but it includes 
 
 any grant or conveyance executed abroad, as well as those 
 
 executed in this country; it having been decided under the 
 
 statute of James, that a deed executed in India, or any 
 
 foreign country, was not an act of bankruptcy, on the ground 
 
 that no act of bankruptcy could be committed abroad. (3) 
 
 The Grant or Conveyance contemplated by the statute j^^g^ j, 
 is a grant or conveyance bij deed, with a proper stamp by deed, 
 affixed to it ; for if the instrument only amounts to an 
 agreement to transfer or assign any part of a trader's effects, 
 or an agreement to accept a composition, — it is not an act 
 of bankruptcy under the above head. (4) 
 
 There are two species of fraudulent conveyances com- Two spe- 
 
 prehended within the statute; 1st, those which are void, ^'^^ ?^, 
 
 • 1 ^ f n , 1 » n fraudulent 
 
 either at common law tor fraud, or under the statute of convey- 
 
 fraudulent conveyances (5) ; 2dly, those which have been ances. 
 
 (I) Com. Dig. " Bankrupt," C.2. (4) Whitwell v. Dimsdale, Roke, 
 (2; Cole V. Daucs, 1 Ld. Raym. 168. Whitwell v. Thoinpson, lEsp. 
 
 724. 68. Jollt/ V. Walks, 5 Esp. 228. 
 
 (3) Inglis V. Grant, 5 T. R. 530. Martin v. Pcwtress, 4 Burr. 2477. 
 
 Norden v. James, Dick. 533. Dutton v. Morrison, 17 Ves. 202. 
 
 (5) 1.5Eliz. c, 5.
 
 64 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Fraudu- 
 lent con- 
 veyance. 
 
 Convey- 
 ances void 
 at law. 
 
 Convey- 
 ances void 
 under the 
 bankrupt 
 law. 
 
 considered fraudulent as an evasion of the Bankrupt law, 
 by distributing the tradei-'s property in a mode, and in pro- 
 portions, different from what that law permits. And, in- 
 deed it has been said, that every case, of an act of bank- 
 ruptcy by deed, proceeds upon the ground of its being a 
 fraud upon the bankrupt law. (1) 
 
 With respect to the first class of conveyances, it would 
 be far beyond the limits of the present treatise to enumerate 
 the various cases that come within it, and which must ne- 
 cessarily depend each upon its own peculiar circumstances. 
 It must suffice on the present occasion to observe, that 
 suspicion always attaches to a deed which is executed in a 
 clandestine manner, or at an unseasonable hour ; to one 
 which is falsely dated, or contains iinusual covenants, or is 
 made isoithout consideration, or where, being an assignment 
 of goods and chattels, it is not accompanied by the delivery 
 of them to the assignee. For further information on this 
 head, the reader is referred to the numerous cases in the 
 books, some of which are mentioned in the note. (2) 
 
 To the second class of conveyances, therefore, it is 
 proposed chiefly to confine our attention ; namely, those 
 which are held void as being in contravention of the Banlc- 
 1-upt la'co, and which, if made by any other person than a 
 trader, would not be considered fraudulent or void. For 
 a conveyance by a man who is not in trade, either of all 
 his property for the benefit of his creditors (3), or an as- 
 signment of part to one creditor in preference to an- 
 
 (1) Rust v. Cooper, Cowp. 629. 
 
 (2) Edwards v. Harben, 2 T. R. 
 587. Wordall v. Smith, 1 Camp. 
 353. Bucknall v. Roiston, Prec. 
 Chan. 287. Lord Cadogan v. Ken- 
 nett, Cowp. 432. Haselinton v. 
 Gill, 5T.R.620, n. 10 Ves. 145. 
 Kidd V. Rajuliiison, 3 Esp. 52. 2 B. 
 & P. 59. Meggott V. Mills, 1 Ld. 
 Raym. 286. Cole v. Davis, Ibid. 
 724. Dewey v. Bayntree, 6 East, 
 
 251. Jones v. Dwyer, 1 5 East, 2 1 . 
 Leonard v. Baker, 1 M. & S. 251. 
 Watkins v. Birch, 4 Taunt. 823. 
 Reed v. Blades, 5 Taunt. 2 1 2. Hart- 
 ley V. Smith, Buck. 568. And see 
 also Sir W. Evans's Compendium 
 of the Law upon the Statutes of 
 Fraudulent Conveyances. 
 
 (3) Pickstock v. Lyster, 3 M. & 
 S. 371. Goss V. Neale, 5 Moore, 
 19.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. i 
 
 Other (1), are not in themselves void, except as they are Fraudu- 
 
 opposed to the policy of the Bankrupt law. ^"^ ^°""" 
 Under the former statutes it was originally decided, that 
 
 in order to construe a conveyance of a trader's lands or ^"'"'^p'" 
 effects to be an act of bankruptcy, it must have been a con- as to frau- 
 veyance of all {2) his lands, or effects, — or of so great a ^^^"t 
 portion of the latter, — that it would not be possible for him ances. 
 afterwards with the remainder to carry on his business (3); 
 for it was held that he might lawfully make a mortgage 
 of part of his lands, or assign part of his effects with 
 possession delivered, to any particular creditor, without 
 its being deemed fraudulent, or an act of bankruptcy. (4) 
 If any part of his estate or effects was excepted in an 
 assignment, which purported to be an assignment o^ all, — 
 then the question was, whether the exception was colour- 
 able or not. (5) This construction was consistent with the Distinc- 
 
 enactment of the statute then in force relating to this '^'"" ^^", 
 
 • 1 r 1 1 I 1 ^ 1 T tween the 
 
 particular act ot bankruptcy, — the words or thelJac. 1. present 
 
 c. 15. s. 2. being " any fraudulent grant or conveyance of ^"d the 
 his, her, or their lands, tenements, goods, or chattels ;" and enact- 
 not, as in the present statute, " any fraudulent grant or ment. 
 conveyance of any of his lands, &c." Another and more 
 modern class of cases extended this rule of construction, by 
 holding that, where the effect of an assignment would be to 
 prevent a fair and equal distribution amongst the creditors, 
 — then the assignment oi only part of the effects, and though 
 made to a hondjide creditor, yet if made in contemplation of 
 bankruptcy, became itself the very act (6) ; for, though not 
 a conveyance of all his effects, it was nevertheless, as to 
 the part actually conveyed, a means whereby his other 
 creditors might be defeated or delayed; and this last mode 
 
 (1) Estwick V. Cailland, 5 T.R. (4) M'ikoii v. Dat/, 2 Burr. 850. 
 424. Inglis v. Grant, Ibid. 530. (5) Gayne/i case, 1 Burr. 477. 
 Nunn V. Wikmore, 8 T. R. 528. (6) Cowp. 124. Linton v. Bart- 
 Meux V. JZotwe//, 4 East, 1. lett, .3 Wils. 47. Devon v. Watts, 
 
 (2) 1 Burr. 467. Doug. 86. Whitwell v. Thompson, 
 
 (3) Doug, 282. 1 Bl. 362. Lo%0 1 Esp. 68. 
 V. Skinner, 2B1.906
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Fraudu- 
 lent con- 
 veyance. 
 
 Assign- 
 ment of 
 all the 
 effects, 
 when an 
 act of 
 bank- 
 ruptcy. 
 
 of construction is consistent with the words and the spirit 
 of the present enactment. As the law now stands, there- 
 fore, any grant or conveyance of any -portion of a bank- 
 rupt's property, which may give an undue preference to 
 any particular creditor, — or which, in the words of the 
 statute, may be made " with intent to defeat or delay his 
 creditors" generally, — will be considered an act of bank- 
 ruptcy ; the material thing for consideration being, the in- 
 tent and 'purpose of the bankrupt in making the grant or 
 conveyance. 
 
 But, Jirst — as to those cases where a trader conveys 
 the isoJiole of his effects. 
 
 A Grant or Conveyance of the \sohole of a trader's pro- 
 perty, which may be valid as between the bankrupt and 
 the other party to it, may be fraudulent by reason of col- 
 lusion or deceit on the part of the trader, and its tending 
 to the injury of his other creditors; as where he continues 
 in possession of the property assigned, — by which means he 
 obtains a false credit among those who deal with him. 
 Thus where a trader assigned all his estate and interest in 
 certain premises, and also all his stock in trade to a par- 
 ticular creditor, for the purpose of securing him the re- 
 payment of advances, at the same time retnainitig himself 
 in possession of every thing conveyed by the deed, and 
 having in fact nothing of value, but what was comprised 
 therein, — he was held to have committed an act of bank- 
 ruptcy. (1) 
 
 So where a trader, finding he could not stand his ground, 
 assigned to one of his creditors every thing he had in the 
 worlds to secure an unliquidated debt, keeping possession of 
 the property, and giving a letter of attorney to his cwn 
 clerk to collect in the debts, — the Court, after observing 
 that the deed was made to prefer the assignee to the trader's 
 other creditors, and that his own clerk was invested with 
 the management of his effects, instead of the commissioners, 
 decided that he became a bankrupt the moment he exe- 
 
 (l) Wors/ey v. De Matfos, 1 Burr. 467.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 07 
 
 cuted the deed. (1) And the same point was ruled, where Fraudn- 
 a trader executed a bill of sale of all his effects to a creditor, ^^"^ ^""' 
 
 111 . • c 1 1 1 veyance. 
 though he was put into possession or them the next day. (2) 
 
 Neither does it render such an instrument less an act of When 
 bankruptcy, that it is given by the trader, when under ar- ""rest 
 rest at the suit of the very creditor, to whom it is so made 
 or given. (3) Nor though the creditors, (with whom such 
 deed was in the first instance concerted,) afterwards, and 
 when it is executed, change their purpose, unknown to 
 the bankrupt, and procure a commission to be issued 
 against him, founded on the very deed as the act of 
 bankruptcy. (4) 
 
 And it makes no difference, whether the assignment is Assign- 
 made to secure a present debt, or to indemnify a surety. ?" j"*" *^^- 
 . . . . ^"^ ^ indemnify 
 
 who IS only likely to become a creditor ; for the mischief a surety. 
 
 arising to the bankrupt's other creditors from the undue 
 preference, is precisely the same. As where the bankrupt 
 had borrowed of a creditor a sum of money, for the pay- 
 ment of which the defendant became surety in a bond, and 
 the bankrupt conveyed to the defendant all his estate and 
 effects, and stock in trade, and a 7iominal possession was 
 given by delivery of a silver spoon, there being a proviso 
 in the deed, that until the defendant was damnified, he 
 should not take actual possession — this was decided to be 
 an act of bankruptcy, though the bankrupt continued sol- 
 vent for three years after the conveyance ; on the ground, 
 that it was intended to give an undue preference to the 
 surety, when he became a creditor — and that the convey- 
 ance, being of all his stock in trade, destroyed in reality his 
 capacity of trading — for he could not afterwards fairly sell 
 an ounce of merchandize, the whole belonging to another 
 person. (5) And an exclusion of only one creditor from Where 
 the benefit of such an assignment, will not prevent its being ^j^^,. 
 
 (1) Wilson V. Bay, 2 Burr. 927. (4) Tappendenv. Burgess, 4East, 
 
 (2) Bidckerv. Easto, Doug. 2S2. 230. 
 
 (3) Newton v. Chantler, 7 East, (5) Hassells v. Simpson, Doug. 
 138. 89. 1 Brown, 99. 
 
 p 2
 
 68 
 
 OF THE ACT OF BANKRUPTCY. 
 
 tCh. S. 
 
 Fraudu- 
 lent con- 
 veyance. 
 
 or part of 
 effects ex- 
 cepted. 
 
 Assign- 
 ment for 
 the benefit 
 of all the 
 creditors 
 not an act 
 of bank- 
 ruptcy, 
 unless a 
 commis- 
 sion issues 
 within six 
 months. 
 
 considered an act of bankruptcy, in the same manner, as if 
 such creditor had been preferred to the rest; neither would 
 a colourable exception in the deed of an inconsiderable part 
 of the trader's property, prevent its being so considered — 
 as where a trader made an assi{;nment of the bulk of his 
 property (except his household goods and some other ar- 
 ticles,) to trustees in trust, to pay themselves and all the 
 creditors mentioned in a schedule, in which schedule one 
 creditor was purposely omitted — Lord Hardwicke was 
 clear that the assignment was an act of bankruptcy. ( 1 ) 
 
 The above cases, we perceive, relate to assignments for the 
 benefit of one or more creditors to the exclusion of others ; and 
 as the necessary consequence of such a transaction is to give 
 an undue preference, it seems but just and reasonable that an 
 assignment of this nature should be held fraudulent against 
 those creditors, who are excluded from the benefit of it. 
 The following decisions, however, invalidate assignments 
 for the benejit of all the creditors, the justice of which it 
 is not so easy to comprehend (2) ; though the professed 
 principle on which they proceed is, that the insolvent's 
 property may be more effectually administered for the good 
 of the creditors under the provisions of the Bankrupt law, 
 than under the management of trustees privately selected 
 for that purpose by the party himself (3) 
 
 And here it may be as well to notice an important re- 
 striction which is added by the present statute to this act of 
 bankruptcy. By the 4th section it is provided, where the 
 conveyance is by deed to trustees for tlie benefit of all the 
 creditors, that it shall not be deemed an act of bankruptcy, 
 unless a commission issue within six calendar months from 
 the execution of it — provided the deed is executed by every 
 trustee within fifteen days after the execution of it by the 
 trader — and the execution, both by the trader and the trus- 
 
 (1) Ex parte Foord, cit. 1 Burr. 
 477. 
 
 (2) 14Ves. 148. 17Vcs. 198. 
 
 (3) See some forcible observ- 
 
 ations upon this subject, by Sir W. 
 D. Evans, in his letter to Sir S. 
 Romilly, page 1 li.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 69 
 
 tees, be attested by an attorney or solicitor — and notice be Fraudu- 
 
 given, within two months after the execution, by the trader ^^"^ ^''"* 
 /•r 1 • 1 • X 1 • I • f -1 1 . . veyance. 
 (11 he reside in L.ondon, or within rorty miles thereof ) in 
 
 the London Gazette, and in two London daily newspapers ; 
 
 and if he reside beyond that distance, then in the Gazette, 
 
 and one London daily newspaper, and one provincial 
 
 newspaper published near to the trader's residence ; which 
 
 notice must contain the date and execution of the deed, 
 
 and the name and place of abode respectively of every such 
 
 trustee, and of such attorney or solicitor. 
 
 This clause will remove several difficulties previously 
 connected with trust deeds for the benefit of creditors — 
 which could be avoided formerly at any time, as an act of 
 bankruptcy, by an outstanding creditor, not a party to the 
 deed ; under such a deed, therefore, no purchaser was ever 
 safe ; for he could never be sure that all the insolvent's 
 creditors had executed the deed. 
 
 An assignment of a trader's effects, however, for the Not if aU 
 benefit of all his creditors, will only be an act of bankruptcy, *'?^ '^^^' 
 when they do not all assent to the deed ; for no creditor, sent. 
 who is either a party or privy to the assignment, or has 
 even acted under it, can afterwards set it up as an act of 
 bankruptcy ( 1 ) ; though this estoppel only applies to such 
 party as petitioning^ creditor, and not to one who happens 
 to be elected an assignee under the commission. (2) 
 
 The first case involving the consideration of an assiffn- 
 ment for the benefit of all the creditors, was decided by Lord 
 Mansfield — in which he held, that such an assignment 
 made by a trader to two of his creditors in trust for them- 
 selves and the rest, was an act of bankruptcy, unless every 
 
 (l) Baviford v. Baron, 2 T. R. parte Battier, Ibid. 426. But a 
 
 594.11. ^yi ^axte Caivkwell, 1 Rose, party is not prevented from suing 
 
 313. Ex parte Whalley, 1 P. Smith, out a commission upon a different 
 
 118. Ex parte Crazi/o/'rf, 1 Christ, act of bankruptcy committed by 
 
 B. L. 137. 182. Back v. Gooch, the trader previously to, and en- 
 
 1 Holt, 13. 4 Camp. 252. Hicks tirely independent of the deed. 
 
 V. Burfitt, Ibid. 255 n. Ex parte I>oe v. Anderson, 1 Star. 262. 
 
 Shaw, 1 Mad. 598. 1 G. & J. 84. {2) Tappendcn\. Burgess, 4Ezst, 
 
 Ex parte Kiiner, Buck. 104. Ex '230. Jackson y. Jnvin, nCoyf p. 49. 
 
 F 3
 
 n 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Fraudu- 
 lent con- 
 vet/ancc 
 
 Condi- 
 tional as- 
 signment. 
 
 Where 
 one part- 
 ner omits 
 to ex- 
 ecute. 
 
 Vv'^hen 
 drawn up 
 contrary 
 to instruc- 
 tion. 
 
 Assign- 
 ment made 
 in India. 
 
 creditor had concurred (1) ; and, in conformity with this 
 decision, it was afterwards held, that where several partners 
 by deed assigned all their partnership effects, &c. to trus- 
 tees for the benefit of their creditors, and some of the se- 
 parate creditors of one of the partners did not assent to it, 
 the assignment, as to sucli partner, was an act of bank- 
 ruptcy. (2) And a condition inserted in such a deed, that 
 it shall be void if the parties think fit (3), or if a commis- 
 sion of bankruptcy be taken out, or if all the creditors do 
 not sign within a given period (4) — will not make it less an 
 act of bankruptcy. Where such an assignment, however, 
 purports to be made by several partners, and one of them 
 never executes the deed — it is very doubtful, (unless the 
 deed was expressly meant to be a several deed,) whether in 
 this case, the assignment would be an act of bankruptcy, 
 even against the partner who executes it; for he might 
 not intend to give the deed any effect, unless the other 
 partner also devoted his share of the partnership property 
 for the purposes of the assignment — which he does not do, 
 in fact, if he fails to execute the deed. (5) And an assign- 
 ment of a trader's effects, which is not drawn according to 
 the instructions given to his attorney to prepare it, cannot 
 be set up as an act of bankruptcy ; for it is not his deed, 
 when it is drawn up contrary to his intention. (6) 
 
 An assignment, however, xnade by a trader, resident in 
 India, of all his effects, in trust for creditors, in certain pro- 
 portions agreed upon by all parties there, has been held to be 
 not an act of bankruptcy — the transaction being perfectly 
 fair at the time, and without any fraudulent intention. (7) 
 
 (1) Kettle V. Hammo7id, 1 C. B. 
 L. 89.; and see Harman v. Fisher^ 
 Per Lord Mansfield, Cowp. 125. 
 
 (2) Eckhardt v. Wilson, 8 T. R. 
 140. 
 
 (3) Tappendenv. Burgess f 4 East, 
 230. 
 
 (4) Dulton V. Morrison, 1 Rose, 
 213. 17Ves. I9f). 
 
 (5) Ibid, 215. Per Lord Kldon. 
 
 (6) Ex parte Norris, 1 G. & J. 
 233. 
 
 (7) Inglis V. Grant, 5 T. R. 530. 
 This seems somewhat irreconcile- 
 able with many of the former de- 
 cisions — 'but there was another 
 ground for the decision in this 
 case, which would not now apply, 
 viz. that the trader, being in India 
 at the time of the execution of the
 
 Sect. 2,] OF THE ACT OF BANKIIUPTCY. yi 
 
 Secondly — Where a trader assigns, or conveys, only Fraudw- 
 part of his property. '^^"^ ^''"- 
 
 Some few of the older cases seem rather opposed to 
 
 the doctrine, that an assignment of only part of a trader's ■'^^^'S"- 
 effects amounted to an act of bankruptcy ( 1 ) ; but they part of 
 have been completely overruled by subsequent deci- ^"^'^'®' 
 sions, all of which lay down on this subject one uniform 
 rule; namely, that a conveyance, either of all, or part, 
 of an insolvent's property in favor of fewer than all the 
 creditors, is an act of bankruptcy ; because it is the 
 means whereby creditors may he defeated or delayed. But 
 an assignment of part of the effects is only considered only frau- 
 fraudulent, when made in contemplation of bankruptcy ,• for " j "*'• 
 a solvent trader has a right to make over any portion of contein- 
 his property that he chooses, either in satisfaction of a P^^*^^°" o^ 
 debt, or for any other purpose. (2) It is only, therefore, ruptcy. 
 when his circumstances are such as must render him un- 
 able to pay all his creditors their demands in full, that 
 an assignment oipart of his effects to any one creditor can 
 be considered, with intent to give that creditor an undue 
 preference over the rest ; and as this is contrary to the 
 whole spirit and meaning of the Bankrupt law, it is now 
 held, not only void as against the other creditors, but also 
 an act of bankruptcy in itself. 
 
 Therefore, where a trader, being in insolvent circum- Instances 
 stances, borrowed 120/. of his brother, and in consideration ^"f^^ 
 of this loan assigned to him one-third part of all his effects, deed held 
 and absconded two days after the assignment — though the ^'"^ii'lu^ent. 
 brother took immediate possession of the goods, and exer- 
 cised clear acts of ownership by exposing them to sale, and 
 carrying on the trade, and had not the least knowledge of 
 the insolvency — the Court, notwithstanding they acknow- 
 
 assignment, was not in a situation of the new statute, be construed an 
 
 in which the Bankrupt laws of this act of bankruptcy. 
 
 country could have any operation (l) Small v. (Dudley, 2 P. Wni. 
 
 either upon him or his property. A 427. Hooper v. Smith, iBl. 441. 
 
 deed, though executed abroad, may Cock v. Goodfellow, 10 Mod. 480. 
 
 now, however, under the 3d section (2) Jacob \. Shepherd, 1 Burr. 178. 
 
 F 4
 
 72. OF THE ACT OF BANKRUPTCY. [Ch. JJ. 
 
 Frawlu- ledged it to be a hard case upon the brother, decided that 
 en con- ^j^^ deed, by reason of the preference, was fraudulent and 
 
 void ; and added, that if they were to let such a deed stand, 
 
 they should tear up the whole Bankrupt laws by the 
 roots. (1) So where a trader, being pressed by a creditor 
 for payment, conveyed estates in trust to sell and pay the 
 ■* creditor, with a further trust to pay debts to certain rela- 
 tives — this was considered an undue ^preference of those re- 
 latives, and, as such, an act of bankruptcy. (2) So where a 
 man, after agreeing to have a commission of bankruptcy sued 
 out against him, and who could only pay 85. in the pound, 
 assigned a lease to three of his creditors, to secure the 
 payment of money due to them, and then in trust for him- 
 self — the assignment was held fraudulent and an act of 
 bankruptcy, because done in immediate contemplation of 
 becoming a bankrupt. (3) So, also, where a banker, being 
 insolvent, conveyed part of his real and personal estate to 
 his son, who had in fact entered into engagements for, and 
 advanced money to his father, in amount more than the 
 value of the estates, and who took possession of the pro- 
 perty immediately on the execution of the deed — Lord 
 Mansfield laid it down as clear law, that if in contem- 
 plation of bankruptcy a man conveyed to the fairest cre- 
 ditor that ever existed — though the deed would not be 
 fraudulent as between them — yet as it tended to defeat the 
 Bankrupt law, by giving a jpreference to one creditor, it 
 was a fraud upon the rest, and, consequently, an act of 
 bankruptcy. (4) And even where a trader continued to 
 carry on his trade for three years after the execution of a 
 conveyance of "part of his property in favour of particular 
 creditors, and the conveyance itself remained in the pos- 
 session of the bankrupt — it was held to be a question for a 
 jury to consider, whether such a conveyance was not fraudu- 
 
 (1) Z/in/onv. 5a;-//ff, 3 Wils. 47.; (3) Devon y. Watts, Doug. 85. 
 and see Cowp. 124. (4) Round v. Hope Byde, 1 C.B. 
 
 (2) Morgan V. Horseman, L. 94. Wkittvell v. Thompson^ 
 3 Taunt. £41. lE5p.68.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 73 
 
 lent, as being voluntarily made, and in order to give an iin- Fraudu- 
 duc ■preference to the prejudice of the general creditors. (1) l^^nt con- 
 It was discussed in one case (2), whether a settlement made 
 
 by a trader previous to and in contemplation of marriage, Qu^^^e, as 
 
 r J 1 • J- II- to mar- 
 
 was rraudulent agamst creditors ; but there is no express ria-^e set- 
 determination on the subject ; though, if the wife was tlement. 
 clearly proved to be a party to any intent to defeat or 
 delay the creditors — such a settlement would then of course 
 be considered fraudulent as to the wife, and an act of bank- 
 ruptcy on the part of the husband. (3) 
 
 But, though an assignment of any jpart of a trader's When as- 
 effects will be fraudulent, if made in contemplation of ^'g"™^"^ 
 bankruptcy, and with a view to prerer one creditor to an- fraudu- 
 other, yet if made hond Jide for a just debt, and without ^^"*- 
 contemplating that event — it will then neither be void, nor 
 an act of bankruptcy. As where a merchant, several 
 months before his bankruptcy, assigned specific goods in 
 the hands of his factors to a particular creditor, in trust 
 for himself and certain other creditors, and the trusts of 
 the deed were immediately and openly carried into exe- 
 cution — this assignment was held to be no act of bank- 
 ruptcy. (4) So the assignment of several debts mentioned 
 in a schedule annexed to the assignment, to indemnify the 
 sureties of the assignor, was held good — he not becoming a 
 bankrupt till a month afterwards, and not having his bank- 
 ruptcy in contemplation at the time of the assignment. (5) 
 
 And though, as we have seen, the remaining in possession 
 of the property after the assignment \s^ prima facie ^ evidence 
 of fraud (6) — yet, when such possession is given to the 
 creditor as the nature of the case will admit, that will re- 
 move all fraudulent imputation. For in many cases — as 
 where goods are bulky, or in a place of distant deposit — 
 
 (1) Pulling V. Tucker, 4 B. 8c k. (4J Jacob v. Shepherd, 1 Burr. 
 382. 478. 
 
 (2) Campion v. Cotton, 17 Ves. (5) Unwin v. Oliver, 1 Burr. 481. 
 268. (6) And see post. " Reputed 
 
 (3) Ex parte Rutherford, cit. Ownership." 
 17 Ves. 268. Ex parte Mayor, 
 
 I Mont. Dig. uote A. 
 
 /
 
 74 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Fraudu- 
 lent C071- 
 veyance. 
 
 there cannot be an actual transmutation from hand to hand ; 
 and a delivery of a symbol of ownership will then be 
 sufficient. Thus, where an engineer was employed by a 
 Canal company to build locks and bridges, and purchased 
 timber and other materials for that purpose (with money 
 advanced him by the company) which were laid on the 
 banks of the canal, and on the company advancing him 
 more money to pay some of his debts, he executed a hill 
 of sale to them of such timber and materials, and de- 
 livered to them a copper halfpenny as a symbol of trans- 
 fer — it was held that the hill of sale was not an act of 
 bankruptcy, it being in reality intended for the benefit of his 
 other creditors — as it was given by him in consideration of 
 an advance of money made for the purpose of enabling 
 him to pay them, and carry on his business. (1) So where 
 a trader conveyed freehold property to trustees, for the 
 purpose of raising money, in order that he might meet all 
 demands upon him with greater facility — such a convey- 
 ance was held not fraudulent, as there was no contemplation 
 of bankruptcy at the time, and no 'preference or exclusion of 
 any particular creditor ; and it was considered to be only 
 disposing of an inconvenient property, the better to apply 
 it to the pui'poses of his business, which would be for the 
 benefit, and not to the prejudice, of his creditors. (2) And 
 even where a trader was insolvent at the time of such a 
 conveyance, it was held to be no act of bankruptcy, where 
 no fraud was imputed, and there was no design to put the 
 property in a train of distribution different from that of the 
 Bankrupt law. (3) 
 
 The Grant or Conveyance intended by the statute, is a 
 grant or conveyance hy a trader of his own property — and 
 
 Must be a 
 convey- 
 ance by a 
 
 trader, not not of property conveyed by another person to, or in trust 
 im. j-„„ 7„-.„ T'l r„..„ vvhere a trader is a party to a 
 
 and expects to derive benefit from 
 
 for him. Therefore, 
 fraudulent assignment. 
 
 (1) Mantonw. Moore, 7T.R.67. 
 
 (2) Barney v. Damson, 1 B. & 
 B. 408. 4 Moore, 126. Ibid. 322. 
 
 (3) Barney v. Vynevy 1 B. & B. 
 482.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 75 
 
 it as assignee — though it is an act of bankruptcy in the as- Fmudu- 
 
 sisrnor, and also void as to the assignee — vet it is not, in re- ''^"^ *"''- 
 
 render or 
 gard to the latter, an act of bankruptcy. As where A. and gift. 
 
 B., being partners, and insolvent, — A. assigned certain 
 
 property to B., in trust for the wife of B. (who was A.'s 
 daughter) — it was held to be no act of bankruptcy by B., 
 notwithstanding he was a party to the deed. (1) 
 
 Where the Grant or Conveyance relied on as the act of Parol evi- 
 bankruptcy, cannot be produced before the commissioners, "^"'^^* 
 they may receive parol evidence of its contents (2); and if 
 the party, in whose possession it is, refuses to produce it, 
 they have now, by the 34th section of the new statute, au- 
 thority to commit him for such refusal. (3) 
 
 12. Making, or causing to be made, any fraudulent Sur- Fraudu- 
 
 render of any of his Copyhold lands or tenements. This is a *^"^ /«''- 
 
 f.^ "-^ -^ render of 
 
 new act or bankruptcy created by the present statute, and copyholds. 
 
 very properly introduced into it, to remedy an inconve- 
 nience in the construction of the former Bankrupt laws — 
 under which it was held, that as no process of execution 
 can issue to levy a debt upon a copyhold estate, a sur- 
 render of copyhold property, therefore, however fraudulent, 
 was not an act of bankruptcy — since it could not be said 
 to defeat or delay creditors, who had no means at law of 
 touching that description of property. (4) 
 
 The same rules of construction as to the fraud of the 
 transaction, and the intent, will of course apply to this, as 
 to the two preceding acts of bankruptcy. 
 
 1 3. Making, or causing to he made, any fraudtdent Gift, Fraudu- 
 Delivery, or Transfer of any of his Goods or Chattels. This lent gift or 
 is also a new act of bankruptcy created by the statute, and ^°^^-^^^' 
 removes a great inconsistency that formerly prevailed in 
 
 the Bankrupt law. For, though a fraudulent gift or trans- 
 fer hy deed was held an act of bankruptcy, it was decided, 
 
 (U Whitmellv. Thompson, lEsp. (3) Ex parte Treacher, Buck. 11. 
 
 68. (4) Ex parte Cockshott, 5 Bro. 
 
 (2) Ex parte CawkweU, 1 9 Ves. 502. 1 C. B. L. 1 62. 
 234.
 
 16 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 3. 
 
 Fraudu- 
 lent gift. 
 
 that a sale, or any transfer of goods, not hy deed — however 
 fraudulent the scheme might be in preference of one cre- 
 ditor to another, and as such void — was nevertheless not 
 an act of bankruptcy. ( 1 ) The rules of construction re- 
 ferred to under the last head, will likewise equally apply 
 to this. 
 
 The Gift, Delivery, or Transfer intended by the statute, is 
 one that is either fraudulent at common latso — or fraudulent 
 as being made in contemplation of bankruptcy ; and, as every 
 transfer of this latter description amounts to a fraudulent 
 preference, the reader is referred to a subsequent part of 
 this work for the law on that subject, where all the de- 
 cisions are collected. (2) Any assignment, or transfer of 
 property, also, by an insolvent trader to any of his children 
 (except upon their marriage), or to any other person, within 
 the terms of the seventy-third section of the new statute, 
 will fall, it is apprehended, under this act of bankruptcy. 
 
 Lying in 
 prison. 
 
 The above are all the acts of Bankruptcy, where the intent 
 of the party is a main and principal ingredient in the com- 
 position of the act ; the remainder are perfectly independ- 
 ent of any intention of the trader, being deemed of them- 
 selves sufficiently indicative of his insolvency, so as to 
 render him a fit subject for a commission of bankrupt. 
 
 1 4. Having been arrested, or committed to prison for debt, 
 or on any attachment for non-payment of money, and there- 
 upon, or upon any other arrest or commitment for debt or 
 non-payment of money, or upon any detention for debt, lying 
 in prison for twejity-one days ; or having been arrested or 
 committed to prison for any other cause, and afterwards lying 
 in prison for twenty-one days, after any detainer for debt 
 lodged against him and not discharged. 
 
 The period of lying in prison, it will be observed, is 
 
 (l) Martin v. Petviress, 4 Burr. 
 iJ478. Doug. 87. 
 
 (2) See post. " Assignment," 
 part £. sect €.
 
 Sect. 2.] OP THE ACT OF BANKRUPTCY. 77 
 
 considerably shorter than that required by the former Bank- Lying in 
 rupt law — which was first six(l), and afterwards reduced ^ ''"^' 
 to two (2) months — and seems in all respects a very proper 
 alteration. For a trader may reasonably be held insolvent, 
 whose credit is so bad, that after being arrested for debt, 
 he cannot, in the course of three weeks, either find money 
 to settle the demand, or prevail upon some persons to be 
 bail for him in the action ; and if, on the contrary, he is 
 able to do so — then his neglect cannot be supposed 
 to arise fvom any thing less than a fraudulent intention ; in 
 either of which cases it is high time for the creditors to 
 look to themselves, and compel a distribution of his effects. 
 
 The arrest, in order to become the date from which the Arrest 
 imprisonment is reckoned, must be in all respects a lawful /""^iT*^ 
 arrest. An arrest, therefore, which in its inception is its incep- 
 strictly unlawful, and which only becomes lawful by sub- *'°"' 
 sequent relation, is not such an arrest as is required by the 
 act. Thus, though an executor may before probate arrest 
 a debtor to the estate, and is justified in so doing if he 
 afterwards proves the will, and takes out letters of admini- 
 stration (3) — yet, if the defendant on such an arrest should 
 continue in prison the whole 21 days mentioned in the 
 statute, this would not be held to be an act of Bankruptcy; 
 for though the arrest becomes good as between the parties 
 by the relation of the subsequent grant of probate, yet, 
 being bad in law before such grant, it shall not be allowed 
 to prejudice third persons, who are no parties to the suit. (4) 
 And the Bankruptcy of such a defendant (even if he 
 should remain in prison a sufficient time after probate to 
 be made a bankrupt) will not be held to relate back to the 
 first arrest, so as to defeat a subsequent payment made by 
 him before probate to another creditor for a just debt. (5) 
 
 The an-est must also be for a debt legally due and de- Must be 
 
 for a pre- 
 sent debt. 
 
 (1) 1 Jac. 1. c. 15. (4) Duncomb v. Walter, 3 Lev. 
 
 (2) 21 Jac. 1. c. 19. 57. 1 Ventr. 270. T. Raymd. 499. 
 
 (3) Roll. Abr.917. Skin. 22. 87. 
 
 (.5) 3 Lev. 57.
 
 78 
 
 OF THE ACT OF BANKRUPTCY. 
 
 [Ch. 5. 
 
 Lying in 
 prison. 
 
 Not on an 
 
 equitable 
 
 contract. 
 
 For pe- 
 nalty due 
 to the 
 crown, 
 sufficient. 
 
 When bail 
 put in, and 
 render 
 after- 
 wards. 
 
 manclable. Therefore an arrest on a bond before the day 
 of ixiyment.) in order to oblige the debtor to find sureties 
 according to the custom of London, is not a sufficient ar- 
 rest within the meaning of the statute ; for no debt is due 
 at the time of such an arrest. (1) Neither is an arrest in 
 an action at law on a contract — the only remedy to enforce 
 the performance of which is by a bill in equity — a suf- 
 ficient arrest on which this act of Bankruptcy can be sup- 
 ported (2) ; though any arrest or attachment for non-pay- 
 ment of money is now, we perceive, made sufficient by the 
 statute. And a detention In prison for a penalty due to 
 the croiioti is, also, considered a lying in prison for debt 
 within the meaning of the statute. (3) 
 
 The statute, it will be observed, does not make the mere 
 arrest an act of Bankruptcy, — for the most respectable and 
 solvent merchant is liable to that inconvenience. But the 
 presumption of insolvency arises, from his lying in prison 
 21 days without being able to get bail. And this pre- 
 sumption will not be rebutted by mere formal bail being 
 put in, for the purpose of changing from one custody to 
 another. Therefore a man arrested in Kent, and brought 
 up to London to be bailed, and immediately turned over 
 to the King's Bench prison, was held a bankrupt from the 
 time of the first arrest. (4) Where a defendant, however, 
 put in good and sufficient bail to the action, and afterwards 
 rendered himself to prison in discharge of his bail, it was 
 a doubtful point under the old law, whether the bank- 
 ruptcy would relate back to the time of the first arrest, or 
 only to the time of the surrender (5) ; though Lord Mans- 
 field thought, when bail was really put in, that the bank- 
 ruptcy only related to the time of the surrender. (6) The 
 former statute indeed, 2lJac. Lc. 19., expressly declared, 
 
 (1) Green, 64, Billing, 96. Good, 
 26. iC.B.L. 94. 
 
 (2) Ex parte Hylliard, 1 Atk. 
 147. 2 Ves. 487. 
 
 (3) Cobb V, Symondx, 5 B. & A. 
 .516. 
 
 (4) Rose V. Green, 1 Burr. 457. 
 
 (5) Cane v. Coleman, 1 Salk. 109. 
 Smith V. Stracy, Ibid. 1 10. Hilly. 
 Shish, 2 Show. 512. Bull. N. P. 38. 
 Tiihe V. Webber, cit. 1 Burr. 438. 
 
 (6) 1 Burr. 439.
 
 Sect. 2.] OF THE ACt^OV BANKRUPTCY. 79 
 
 that in the case of li/ing in prison for debt, the defendant Lying in 
 should be " accounted a bankrupt from the time of his first P^'^°^- 
 arrest." But the present statute says nothing about the 
 time from 'which the imprisonment is to be computed (1) ; 
 and therefore, it is' apprehended, that whether a man gives 
 bail or not, he must now in all cases actually remain in 
 prison for the space of 21 days, in order to be found a Bank- 
 rupt. And it may perhaps be a question in the construction Doubtful 
 
 of the present statute — as no notice whatever is taken of f\-^° ^^' 
 ^ lation 
 
 the time from isohich the bankruptcy shall be reckoned — back to 
 whether, after the expiration of the 21 days, the Bankruptcy airest. 
 will relate hack to the first day of imprisonment, or merely 
 to the day when the 21 days expire. There is certainly 
 no complete act of Bankruptcy until the full expiration of 
 that time — though it may be said to be inchoate after the 
 imprisonment has once begun, for then the party is in fact in 
 the progressive course of committing an act of bankruptcy. 
 
 Whether or not, however, this act of Bankruptcy, when Period of 
 completed by the term of imprisonment, may be held now imprison- 
 (as it was before (2) ), to relate back to the first day of ar- expire 
 rest — it is perfectly clear, that no commission can be sued before 
 out upon it till the twenty-one days completely expire ; s^'^^™*''' 
 for no subsequent lying in prison will give effect to a 
 previous commission. (3) But it would be no objection, but need 
 that the requisite time had not expired when the docket "ot before 
 
 QOCKGt 
 
 was struck ; provided it was expired before the issuing of 
 
 the commission. (4) 
 
 Where a party, in prison at the suit of one plaintiff, is Where a 
 
 detained at the suit of another, and after such detention, P^'^*^^, u 
 
 . tained by 
 
 lies the requisite time at the suit of the second, though another 
 
 (l) This appears to be an ac- (2) Rose v. Green, supra. King 
 
 cidental omission; for in mention- v. Leith, 2T. R. 141. 
 
 ing the next act of bankruptcy, (5) Gordon v. Wilkinson, 8 T. R. 
 
 viz. " escaping from prison," the 507. 
 
 statute expressly declares, that the (4) Wydoivn^s case, I'iNes. Ex 
 
 commission of that act of bank- parte DuJ'resne, 1 V. & B. 51. 
 
 ruptcy shall be deemed to be " from 2 Rose, 333. 
 the time of the arrest, commit- 
 ment, or detention." 
 
 creditor ;
 
 80 
 
 OP THE ACT OF BANKRUPTCY. 
 
 LCh.3. 
 
 Lying in 
 prisoju 
 
 Need not 
 be a pub- 
 lic prison ; 
 
 the impri- 
 sonment 
 must be 
 conti- 
 nuous. 
 
 When 
 committed 
 upon a 
 criminal 
 charge. 
 
 discharged as to the first — this is, of course, within the 
 statute. (1) 
 
 The word " prison" does not necessarily mean the 
 county gaol, or any of the public prisons — but it will be 
 sufficient if the defendant, after being arrested, continues 
 in actual custody the whole of the 21 days. Therefore 
 where a man was so ill in bed, that he could not be re- 
 moved without endangering his life, and was allowed by 
 the officer, who an*ested him, to remain for some time in 
 his own house, and was afterwards carried to gaol, where 
 he remained till the expiration of the full time from the 
 date of his first arrest — this was held a sufficient lying 
 in prison to constitute an act of bankruptcy. (2) And 
 though the party has the benefit of the day rules of the 
 prison — it is equally an act of bankruptcy; for the prin- 
 ciple, on which this act of bankruptcy is founded, is, that it 
 is evidence of insolvency. (3) If a defendant, however, 
 on being arrested, is allowed to go at lat-ge, and then re- 
 turns to custody — the act of bankruptcy has, in that case 
 only reference to the latter event ; for the period of im- 
 prisonment required by the statute must be contimious 
 and unbroken. {^) 
 
 There was some doubt entertained formerly, whether 
 when a trader was committed to prison on a criminal 
 charge, and was afterwards charged in an action for debt, 
 his lying in prison the stated time after such detainer, con- 
 stituted an act of bankruptcy — the original commitment 
 being under a criminal sentence. (5) But it was afterwards 
 determined, that such lying in prison amounted to an act 
 of bankruptcy ; and this though he might be discharged 
 from the criminal process without his knowledge. (6) The 
 words, however, of the new statute now remove all doubt 
 upon this point, as it is immaterial whether he is in the 
 
 (1) Coppcndale v. Bridgen, 
 2 Burr. 814. 
 
 (2) Stevens v. Jackson, 1 Marsh, 
 469. 6 Taunt. 106. 
 
 (3) 1 Carringt. N. P. Rep. 401 . 
 
 (4) Barnard v. Palmer, 1 Camp. 
 309. 
 
 (5) Ex parte Bowes, 4Ves. 168. 
 
 (6) Rex V. Page, 1 B. & B. 308. 
 3 Moore, 656. 7 Price, 616.
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. 81 
 
 first instance committed to prison for debt, or " for any Sreakino 
 other cause." prison^ 
 
 In the computation of the period of imprisonment, the How im- 
 day of being committed to prison, or of the arrest — if the P"^°"" 
 party thereupon goes to prison (1) — is to be reckoned the be com- 
 first of the 21 days; and the time is not completed until P"'<^'^- 
 the expiration of the whole of the last day. (2) 
 
 1 5. Escapmg out of Prison, or Custody, after having been 
 arrested, committed (3), or detained (3) for debt. 
 
 This act of bankruptcy is founded on the same principle 
 as the last ; for no man would break prison, that was able 
 and desirous to procure bail. The observations, therefore, 
 under the last head of bankruptcy, as to the legality of the 
 Arrest, apply in an equal degree to this ; unless the arrest, 
 committal, or detainer, is strictly lawful in every respect, 
 the subsequent escape will not be an act of bankruptcy. 
 
 By the former statute (the 21 Jac. 1. c. 19.) the arrest As to the 
 must have been for not less than the sum of 100/. ; but the for°which 
 present statute comprehends every arrest for debt, what- arrest 
 ever the amount of the debt may be for which the trader is ™^"^- 
 arrested. 
 
 The Escape intended by the statute is such an one, as Must not 
 
 plainly evinces the intention of the debtor to run away, "" . 
 ' •' _ "^ escape by 
 
 and thereby to defeat his creditors; and it must be an es- implica- 
 cape against the will of the officer in whose custody he is, '*°"' 
 and not an escape by implication ; for this being considered 
 a criminal act in the eye of the law, a man shall not be 
 made a criminal, when he has no intention to commit a 
 crime. Therefore, if a trader is arrested in Kent, and, 
 being brought to town in custody of the sheriff's officer, 
 is permitted by him to call at his attorney's house in the 
 city, and from thence is immediately carried to the Judge's 
 chambers, in obedience to a writ of habeas corpus ,- — this 
 would not be such an escape as is contemplated by the 
 
 {I) Saunderson V. Gregg, 3 Star. (2) Glassingion v. Rcnvlins, 
 72. .-) East, 407. 
 
 (.") These words are new.
 
 82 OF THE ACT OF BANKUUPTCy, [Cll. 3. 
 
 Filing de- statute; for the defendant remains substantially in custody, 
 \nsolvena! notwithstanding he is carried into another county in his 
 
 ■ transit to the Judge's chambers. ( 1 ) 
 
 1 6. Filing a declaration in the office of the Secretary of 
 Ba?ikrupts, signed hy himself^ and attested by an attorney 
 or solicitor, that he is Insolvent, or unable to meet his engage- 
 ments. (2) 
 
 This is an entirely new act of bankruptcy created by the 
 statute, and is intended, no doubt, for the relief of the 
 honest, though unfortunate debtor ; who may now, when 
 he finds himself insolvent, be encouraged to avail himself 
 of the protection afforded by a commission, without having 
 recourse, as formerly, to a concerted act of bankruptcy, — 
 which has of late years been uniformly held a nullity. (3) 
 For as Bankruptcy was formerly regarded, either in the 
 light of criminal insolvency, or as a condition of necessity, 
 no voluntary act of the trader, by which he constituted 
 himself a bankrupt, was held admissible in law ; for in the 
 one case he would be declaring himself a criminal; and in 
 the other, as it would be a spontaneous contrivance of his 
 own, and not a condition of necessity, — the Courts have 
 hitherto looked upon such voluntary act as nothing less 
 than a fraud. Experience, however, has proved the prac- 
 tical inconvenience of this doctrine, if it has not exposed its 
 fallacy ; and the present statute, therefore, provides for the 
 voluntary declaration of a trader's insolvency, made bona 
 ^fide, for the purpose of surrendering himself and his pro- 
 jierty to the regulations of the Bankrupt laws, which pro- 
 vide equally for his own protection, and for a just distri- 
 bution of his effects amonsj his creditors. 
 Requisites Two things are required to render this act of bankruptcy 
 ^fl'^'V^' complete. First, the Secretary of Bankrupts, or his deputy, 
 ruptcy. must sign a memorandum, that the declaration of Insol- 
 vency has been duly filed, as an authority to insert an ad- 
 
 (1) liosc\. Green, \Vtv\xx.A'^0. (b) Roberts v. Teasdale, Pcake, 
 
 (2) Section G. 27. Ex parte Goiuthiuaite, 1 Rose, 
 
 (3) Uooj^er v. Smith, 1 Bl. 441. 87. Ex parte Binvier, 1 Mad. 250., 
 Eyre v. Birbeck, 2 T. K. r)95, note &c'.
 
 commis- 
 sion must 
 
 Sect. 2.] OF THE ACT OF BANKRUPTCY. BS 
 
 vertisement of it in the Gazette: 2dly. The advertisement Filing de- 
 
 must be inserted in the Gazette ivithin eight days after j^(jo^J^°" ""^ 
 
 filing the declaration ; — after which proceedings, the declar- ^ 
 
 ation will be considered an act of bankruptcy, committed at 
 
 the time when the declaration was filed. 
 
 No commission can be supported upon this act of bank- When 
 
 ruptcy, unless it be sued out within two calendar months 
 
 after the insertion of the advertisement in the Gazette ; be sued 
 
 neither can any docket in a London commission be struck, °" ' 
 . . . . when 
 
 before the expiration of four days after the insertion of the docket 
 
 advertisement, — nor before eight days in a Country commis- '^"^t be 
 
 struck 
 sion. And the Gazette containing the advertisement is to 
 
 be evidence of the declaration having been filed, in all pro- 
 ceedings before the commissioners. 
 
 It is also expressly declared by the 7th section of the Not in- 
 statute, that no commission founded on this act of bank- beinffc'on. 
 ruptcy shall be deemed invalid, by reason of the declaration certed. 
 having been concerted^ or agreed upon, between the bank- 
 rupt and any creditor, or other person. 
 
 1 7. Any trader^ after a docket struck against him, either Fraudu- 
 jpaying money, or giving or delivering any satisfaction or pQgHiQ„ ' 
 security for his debt or any part thereof to the person striking 
 the docket against him, isoherehij such persoii may receive more 
 in the pound in respect of his debt, than the other creditors. 
 
 This act of bankruptcy was first created by the 5 Geo. 2. Difference 
 c. 30. s. 24). ; but it was there confined to the payment of ^^e^^ew 
 money, &c., after the issuing of the commission, and did not and for- 
 embrace the earlier period included in the present statute, "^^' 
 viz. after striking the docket — upon which latter event the 
 mischief intended to be prevented was generally conse- 
 quential ; for by striking a docket, the crafty creditor could 
 gain some days to himself, the more easily to traffic with 
 the bankrupt, to the prejudice of the other creditors. (1) 
 The act of bankruptcy was also not complete under the 
 former statute, unless the creditor had actually and pri- 
 
 (1) Ex parte Gedge, .T Ves. SSO. 
 G 2
 
 84 
 
 OF THK ACT OF BANKRUPTCY. 
 
 [C'h. y. 
 
 Frauihi- 
 lent CO III - 
 posiii()7i. 
 
 Penalty 
 on the pe- 
 titioning 
 creditor. 
 
 Filing a 
 petition to 
 take the 
 benefit of 
 the insol- 
 vent act. 
 
 VATEi.Y received, more in the pound than the other creditors. 
 In the present statute the word " privately'^ is omitted ; 
 and the prohabilUij, or even the jjossibilitij, of the petitioning 
 creditor receiving, under such compact with the bankrupt, 
 more in the pound than the other creditors, will be enough 
 now, without any actual receipt of money, to estabUsh this 
 act of bankruptcy. 
 
 A commission issuing upon such a docket may, how- 
 ever, be either proceeded in, or superseded, as the Lord 
 Chancellor shall think fit ; in which latter case a new com- 
 mission may issue, either upon this or any other act of. 
 bankruptcy. The petitioning creditor, as a penalty for 
 such compounding, forfeits his whole debt; and may also 
 be compelled to repay or deliver up the money or security 
 he has received, or the full value thereof, to such person 
 as the corainissioners shall appoint, for the benefit of the 
 creditors of the bankrupt. (1) 
 
 18. Filing a petition to take the benefit of the Insolvent 
 Act. This act of bankruptcy is not specified among those 
 enumerated by the present statute (2) ; but it is made one 
 by the late insolvent act, 7 Geo. 4. c. 57. s. 13., and the 
 last, it is now presumed, of those innumerable and contra- 
 dictory laws, which have been permitted year after year to 
 crowd the latter volumes of our statute book. (3) The 
 requisites to constitute this act of bankruptcy are, first, 
 that the person shall be in actual aistody at the time of 
 filing the petition ; secondly, that such person shall be 
 declared bankrupt before the time advertized in the Gazette, 
 and appointed by the Insolvent Court, for hearing the 
 matters of the petition, or within two calendar months 
 from the filing of the same. It is also declared, that the 
 commission issuing upon this act of bankruptcy shall, after 
 such adjudication, within the above mentioned period, but 
 
 (l) Ex parte Thompson, 1 Ves. 
 157. Ex partePflar^o?i. IsVes. 464. 
 Ex parte Brown, Ibid. 475. Ex 
 parte Brine, Buck. 19. 108. 
 
 (2) It was, however, included 
 among the acts of bankruptcy in 
 the 5G. 4. c. 98. s. 5. 
 
 {7i) Sec ante, p. 44., note.
 
 Sect. 2.] OF THE Acr of bankruptcy. 85 
 
 not before, have the effect of avoiding any conveyance and Members. 
 assignment of the estate and effects of such person under °^nent^^^ 
 
 the insolvent act. And the act of bankruptcy is to be 
 
 accounted from the time of filing tlie petition. 
 
 19. V/ith respect to traders, having Privilege of Parlia- Traders 
 mentf it is enacted by the 9th section of the new sta- ^p'^SPp' 
 tute, that if any such person commit any of the acts of parlia' 
 bankruptcy before enumerated, a commission of bankrupt '"'^"^' 
 may issue against him, and be proceeded with in hke 
 manner as against other bankrupts ; save only, that he is 
 not liable to be arrested or imprisoned during the time of 
 his privilege, except in cases by the act made felony. It is Proceed- 
 also enacted by the 10th section of the statute, that if any ^"1, ^ 
 
 •' 'J summons. 
 
 creditor of such a trader, to the amount requisite to sup- 
 port a commission, shall file an Affidavit (1) in any Court of 
 record at Westminster that the debt is justly due to him, 
 and that the debtor is such a trader, and shall sue out of 
 the same court a summons, or an original bill and sum- 
 mons, — then, if such trader shall not within one calendar 
 month after personal service of such summons, either pay, 
 secure, or compound for the debt to the satisfaction of the 
 creditor, or enter into a bond in such sum, and with two such 
 sufficient sureties, as any of the Judges of the Court out of 
 which the summons is issued shall approve of, conditioned 
 to pay such sum as shall be recovered in the action, toge- 
 ther with the costs ; and also cause a proper appearance to 
 be entered to such action ; — every such trader shall in that 
 case be deemed to have committed an act of bankruptcy from 
 the time of the service of such summons; and any creditor 
 may sue out a commission against him, and proceed there- 
 on as against other bankrupts. 
 
 In the proof of this act of bankruptcy, it must appear What evi- 
 that the summons was taken out after the affidavit of debt '^^."S^/''^" 
 
 was filed. And as some of the circumstances cannot be this act of 
 
 bank- 
 ruptcy, 
 (l) This provision was first in- other provisions were added by the 
 
 troduced by the 4 G. 5. c. 55., and 45 G. .". c. 124. s, 1 
 
 G 3
 
 u 
 
 OF THE ACT OF BANKHUl'TCY. 
 
 [Ch.3. 
 
 Mevibers 
 of parlia- 
 ment. 
 
 Creditors 
 competent 
 to a cer- 
 tain ex- 
 tent 
 
 Proceed- 
 ing under 
 a decree 
 or order. 
 
 proved but through the medium of a creditor, the necessity 
 of the case will justify a departure, in some measure, from 
 the general rule, that a creditor cannot be admitted to 
 prove the act of bankruptcy; but then his testimony ought 
 only to be received as to facts, of which evidence cannot be 
 obtained from other sources. (1 ) Therefore, though the cre- 
 ditor may be permitted to prove that the debt has not been 
 paid, secured, or compounded for to his satisfaction, — yet 
 the circumstance of the bankrupt being a member of 
 parliament, and a trader, nmst be derived from other 
 witnesses. (2) 
 
 It is provided also by the 11th section of the act, that if 
 any decree, or order, shall have been pronounced in any 
 cause depending in Equity, or any order made in any 
 matter of Bankruptcy, or Lunacy, against any trader having 
 privilege of parliament, ordering such trader to pay any 
 sum of money — and he shall disobey, after the same has 
 been duly served upon him, — the person entitled to receive 
 such money may apply to the court, by which the same 
 shall have been pronounced, to fix a peremptory day for 
 the payment of such money ; and if, upon being personally 
 served with such peremptory order eight days before the 
 day appointed for the payment of the money, he shall 
 neglect to pay the same, — he shall then be deemed to have 
 committed an act of bankruptcy from the time of the service 
 of the order; and every such creditor may also sue out a 
 commission against him, and proceed as against other 
 bankrupts. 
 
 (l) See post, " Evidence." 
 
 (2) Ex parte Harcourl, '2 Rose, 
 211.
 
 CHAP. IV. 
 
 OF THE PETITIONING CREDITOR. 
 
 1 . Of the amount and nature of his Debt. 
 
 2. Of the time of the contracting and accruing of the Debt. 
 
 3. General duties and liabilities of the Petitioning Creditor. 
 
 Section I. 
 Of the amount and nature of the Debt. 
 
 JjY section 15. of the new act, the petitioning creditor's ( 1 ) 
 
 debt (if one creditor or one firm petition,) must amount (2) 
 
 to 100/.; — if two creditors petition, the amount of both 
 
 debts must be 150/. ; — if three or more, the amount must 
 
 then be 200/. And though the debt be not actually payable Debt pay- 
 
 at the time of the act of bankruptcy, yet if credit has been ^^^ *'* 
 
 given to the bankrupt upon valuable consideration, it will 
 
 be a good petitioning creditor's debt, whether he has any 
 
 security in writing for it or not. (3) 
 
 The debt must be a legal debt, and not an equitable Must be a 
 one; therefore the assignee of a bond (a security which is ^S^ ^^ ' 
 not assignable at law) cannot be a petitioning creditor. (4) 
 And where there is only one petitioning creditor there 
 
 (i) The statutes prior to the s. 22.}, a debt payable at a future 
 
 5 G. 2. c. 20. (with the exception of day, unless there was a ivritten 
 
 the 5 Ann. c. 22. which soon ex- security for it, would not con- 
 
 pired) did not require the commis- stitute agood petitioning creditor's 
 
 sion to be issued upon the petition debt. Parsloiu v. Dearlove, 4 East, 
 
 of a creditor. 438. Hoskins v. Duperoy, 9 East, 
 
 (2) The 5Ann. c. 22. was the 498. Ex parte /F/i«7t», 3 Ves. & B. 
 
 first statute that regulated the 1.50. Ex parte i^'i^rawrfa, Buck. 35. 
 
 amount of the petitioning ere- Price v. Nixon, 5 Taunt. 538. 
 
 ditor's debt. (4) Ex parte Hylliard, 2 Ves. 407. 
 
 (5) Under the construction of 1 Atk. 14 7. ilfcrf/ico/^'s case, 2 Str. 
 
 the former law (the 5G. 2. c.30. 899. Ex parte iff, lP.Wni.782. 
 
 G 4
 
 OF THE PETITIONING CllEUITOK. [Ch. 4-. 
 
 Amount 
 and nature 
 of debt. 
 
 and due to 
 petitioning 
 creditor in 
 his own 
 right. 
 
 One of 
 several 
 
 assignees. 
 
 Partners. 
 
 must be a debt due to him scjjaratcli/, and for which he 
 could maintain an action at law in his oimi right. There- 
 fore 07ie of two joint obligees, or one of several jutrlners, is 
 not by himself a good petitioning creditor against the 
 obligor, or the joint debtor, without the ot/ier obligee, or 
 partner, concurring in the petition. (1) But one of several 
 assignees may sue out a commission in respect of a debt 
 due to their bankrupt, without the other assignees joining 
 in the petition, — for such it appears is the practice at the 
 Bankrupt office ; and it was held in such a case to make 
 no difference, that the assignee petitioning was also the 
 solvent partner of the bankrupt. (2) And where one of 
 three partners engaged with the acceptor of certain bills 
 of exchange drawn by the partnership, to provide for the 
 acceptances when due, — it was held that the partnership 
 could not support a commission on the bills against the 
 acceptor ; for as they could not maintain an action at law 
 on them against him, (in consequence of the undertaking of 
 one of the partners to provide for them,) they could not 
 make them the subject of a debt as petitioning creditors. (3) 
 But a joint debt, due from several partners, is a legal debt 
 to support a separate commission by the joint creditor, 
 against any one of the partners. (4) 
 
 As to the reciprocal right of partners against each other 
 in this respect, — one partner cannot sue out a commission 
 against another, upon any debt arising out of a partner- 
 ship transaction. But when the accounts have been liqui- 
 dated, and the partnership determined, and the solvent 
 partner has paid all the debts ; — in such a case Lord Eldon 
 thought a commission might be supported. (5) And one 
 partner may always support a commission against another, 
 if the debt does not arise out of a regular partnership 
 
 ( 1 ) Brickland alias Buckland v. 
 Newsame, 1 Taunt. 479. 1 Camp. 
 474. 
 
 (2) Ex parte Blakey, 1 G. & J. 
 197. 
 
 (j) Richmond v. Heapy, 1 Star. 
 202= 
 
 (4) Ex parte Crisp, 1 Atk. 134. 
 Crispe v. Pcrritt, Wilkes, 467. Ex 
 parte Caruthers. Ex parte Upton, 
 tit. Ibid. Ex parte Ackerman, 
 l-lVes. 604. Ex parte Deiudney, 
 15Ves.499. 
 
 (5) Ex parte Noken, 2 Mont. 144.
 
 Sect. 1.] OF THE PETITIONING CREDITOR. 89 
 
 transaction (1 ) — that is — where each partner is interested Amount 
 in both the •profit and the loss. Therefore in a case where "^(i"Z""^ 
 
 A. deposited goods with B. for sale, on an agreement that 
 
 the profits should be equally divided between them, but 
 the loss, if any, was to be borne exclusively by A. — and B. 
 afterwards effected a sale and received the money ; — this 
 agreement was held not to render them such partners in 
 the transaction, as to prevent A. from suing out a com- 
 mission against B., on the balance due from him to A. (2) 
 
 A creditor who receives part of his demand after notice Creditor, 
 
 of an act of bankruptcy, which reduces his debt belo'w 100/., ^-''f'" ^?^ 
 • 1 u f 1 1 £• • • • of bank- 
 
 is not thereby precluded irom sumg out a commission on ruptcy, 
 
 the whole debt; for such payment after notice of the act of ''eceiving 
 , , . . T 1 • 1 11 1- part of his 
 
 bankruptcy is invalid in law ; — and the creditor, moreover, debt ; 
 
 by taking out the commission on the ground that the is::hole 
 demand is unpaid, admits, of course, the invalidity of the 
 payment. (3) And upon the same principle, where a ere- or execut- 
 ditor, who was ignorant that an act of bankruptcy had been ^"^^j^- ^^^' 
 j9rmoe^i-/z/ committed by his debtor, executed a composition deed; 
 deed (which, being after the act of bankruptcy, was there- 
 fore invalid) for the amount of his debt, — though he 
 afterwards received a dividend under it — yet as the whole 
 transaction was invalid, it was held that he might never- 
 theless become a good petitioning creditor in respect 
 of the original debt. (4) So where a creditor by simple or taking 
 contract took a bond for his debt after the act of bank- ^^ond; 
 ruptcy, it was held not to extinguish the original debt, 
 so as to prevent the creditor from suing out a com- or bill on . 
 mission upon it. (5) So also, where a creditor took a bill ^^h^'i^i 
 of exchange for part of his debt, drawn by the debtor no effects; 
 upon an acceptor, who had not at that time, nor previous 
 to the bill becoming due, any effects of the drawer in his 
 hands, — this was held not to prevent the creditor from suing 
 
 (1) Windham v . Paterson, 1 Star. (4) Doe v. Anderson, 5 M. & S. 
 144. 161. 
 
 (2) Mars/on v. Barber, 1 Gow. (5) Ambrose v. Clendon, 2 Str. 
 17. 1042. Cas. temp. Hard. 267. In 
 
 (.3) Mann v. Shepherd, 6T. R. re Bri/ant, 1 Rose, 28 J. 
 79. Ex parte Miller, Buck. 28.3.
 
 m 
 
 OF THF, PETITIONING CKEDITOK. 
 
 [Ch. 4. 
 
 Aviotint 
 and nature 
 of debt. 
 
 or a note 
 on a wrong 
 stamp. 
 
 Creditor 
 by notes 
 bought in. 
 
 Debt com- 
 posed 
 partly of 
 interest. 
 
 Banker's 
 check. 
 
 Debt must 
 not de- 
 pend on 
 a contin- 
 gency. 
 
 out a commission upon the whole debt, notwithstanding he 
 neglected to give notice to the drawer of the bill being dis- 
 honoured. (1) A proinissoty note, also, given on a ivrong 
 stamp, for a pre-existing debt, does not destroy the debt ; and 
 a commission may be supported in such case on the original 
 debt ; for the note in this case was not the foundation of 
 the debt, nor necessary to be had recourse to in the proof 
 of it, if it could be established by other evidence. (2) 
 
 A creditor by notes bought in at 105. in the pound, it 
 has been determined, is a creditor for the full sum, and 
 may take out a commission as a creditor to that amount. (3) 
 
 A debt composed partly of the amount of a bill of ex- 
 change, and partly of interest calculated thereon, is not a 
 good petitioning creditor's debt, unless such interest be ex- 
 pressed in the body of the bill ,- for interest, when it is not spe- 
 cified in the contract, forms no part of the debt at law, but 
 is only given as damages for the detention of the debt. (4) 
 
 And where the petitioning creditor had, upon an applica- 
 tion for a loan from a bankrupt, delivered to him a check on 
 his bankers for 100/., — which check had got back again to 
 the hands of the petitioning creditor, as if satisfied, but the 
 petitioning creditor was unable to give positive proof that the 
 check was actually paid, — the check itself was held not suf- 
 ficient evidence of a petitioning creditor's debt. (5) 
 
 The debt must also be a present existing debt, and not 
 one depending on a contingency. A promissory note, 
 therefore, given to a trustee under a marriage settlement, 
 though it was in form a present debt, and payable on de- 
 mand, yet as it was in fact only a security for a contin- 
 gent debt under the settlement, which would not be pay- 
 able unless the wife died before her husband — was held not 
 a sufficient debt to support a commission against the maker of 
 
 (1) Bickerdilce v. Bolhnan, 1 T. 
 R. 405. 
 
 (2) Ex parte Geddes, 1 G. & J. 
 414., where it is said that the same 
 rule holds with respect to a se- 
 questration in Scotland; and see 
 Brown v. Walls, 1 Taunt. 555. 
 
 (.>) Ex parteLfc, I P. Wnis. 782. 
 
 (4) In re Burgess, 8 Taunt. 660. 
 'J Moore, 745. Ex parte Green- 
 way. Buck. 412. Cameron v. Smith, 
 2 B. & A. 505. Ex parte Marlow, 
 1 Atk. 150. 
 
 (5) Bleasby v. Crossley, 2 Car- 
 ring. & P. 215.
 
 Sect. 1.] OF THE PETITIONING CREDITOR. 9f 
 
 the note. ( 1 ) But it seems that a 'warrant of attorney, though Amount 
 appearing by the defeazance to be given really as a security "fj^^t"'^^ 
 
 against the running acceptances of the conusor, is a debitum 
 
 in prcBsenti sufficient to support a commission. (2) Warrant 
 
 A debt on account, though not liquidated, has been ney. 
 held sufficient, if the creditor can swear to a balance Unliqui- 
 amounting to the requisite sum (3) ; but in a later case, count. 
 where the accounts were very intricate, this was considered 
 an objection. (4) 
 
 A debt upon an attorney's hill, though it has not been Attorney's 
 
 signed and delivered pursuant to the statute (5), is sufficient ' 
 
 to support a commission, though not an action ; but in such 
 
 a case the bill will be afterwards referred to the Master to 
 
 be taxed (6) ; and this may be done, (if the bankrupt had a 
 
 right to have it taxed at the time of the bankruptcy,) either 
 
 upon the application of the bankrupt himself, or of any of 
 
 the creditors. (7) And where a solicitor, pending an order Suing out 
 
 for the taxation of his bill, and for stayins: all proceedinss ^5""™'**" 
 
 , , ° sion, pend- 
 
 at law in the mean-time, sued out a commission of bank- ing an 
 
 rupt upon it, it was held neither to amount to a contempt, °^'^^^. '°'' 
 , rt, • r T, .. taxation. 
 
 nor to be a sutncient cause tor supersedmg the commission ; 
 
 as the order extended only to bringing actions, and the 
 
 common and ordinary proceedings. (8) 
 
 If one tradesman becomes security for another, the ere- Surety. 
 ditor may take out a commission against the surety. (9) 
 
 So a sum awarded by an arbitrator will support a com- Sum 
 mission against the person who is awarded to pay it, not- '^^^ ^ 
 withstanding a bill is filed to set aside the award ; for the bitrator, 
 arbitration bond is a debt at law, and binds the parties 
 until the award is set aside for any defect in it. (10) 
 
 It seems that an uncertificated bankrupt — as he can Uncer- 
 acquire property, and hold it against all the world except u t! 
 his assignees — may also be a petitioning creditor, provided rupt. 
 
 (1) Ex parte Page, 1 G.&J. 100. (7) Ex parte Pridcan-x, 1 G. & 
 
 (2) Miles V. Rawlins, 4Esp. 194. J. 28. 
 
 (5) Flower V.Herbert, 2 Yes.526. (S) Moseley's Rep. 27. I C. B. 
 
 (4) Ex parte Boives, 4 Ves. 168. L. 17. 
 
 (5) 2 G. 2. c. 25. s. 22. (9) Haylor v. Hall, Palm. 325. 
 
 (6) Ex parte Steele, 16 Ves. 166. Dexhani's case, Stone, 183. 
 
 Ex parte HoiveU, i Rose, .512. ( i o) Ex parte Lingood, 1 Atk. 24 1 .
 
 92 
 
 OF THE PETITIONING CREDITOR. [Ch. 4. 
 
 Amount 
 and nature 
 of debt. 
 
 Executor 
 of a bank- 
 rupt. 
 Factor. 
 
 Creditor 
 residing in 
 an enemy's 
 country ; 
 
 trading 
 under a 
 licence ; 
 
 where the 
 residence 
 involun- 
 tary. 
 
 Debt from 
 a person 
 discharged 
 under the 
 insolvent 
 act. 
 
 his assignees make no claim to tlie debt upon which he 
 sues out a commission. (1) But an executor of a bankrupt 
 cannot sue out a commission upon a debt due to his tes- 
 tator before his bankruptcy. (2) 
 
 A factor who sells goods in his own name, though with- 
 out a del credere commission, is a good petitioning cre- 
 ditor against the purchaser ; and it makes no difference 
 if he communicates the name of the purchaser to his prin- 
 cipal ; unless indeed the principal has agreed with him to 
 consider the purchaser as his debtor, and has taken steps 
 for recovering the debt directly from the purchaser. (3) 
 
 A commission cannot be supported upon a debt due to 
 a natural born subject, voluntarily residing and carrying on 
 trade in an enemi/s country ; and where some only of the 
 partners of a firm were in that predicament, the debt due 
 to the partnership was held incapable of supporting a com- 
 mission. (4) But where one of two partners had a licence 
 granted by an order in council, to export and import cer- 
 tain goods to and from an enemy's country, and was there 
 only for the fair purposes of the licence when the commis- 
 sion issued — such a temporary residence was deemed not 
 to invalidate the debt. (5) So a mere invohmtary residence 
 of one partner in an hostile country, without any proof of 
 adhering to the enemy, will not prevent his right to be a 
 petitioning creditor with the other partner. (6) 
 
 A creditor of an insolvent trader^ notwithstanding the dis- 
 charge of the latter under the insolvent act, it has been held, 
 may take out a commission of bankrupt against him ; and his 
 debt, although included in the insolvent's schedule, will be a 
 sufficient petitioning creditor's debt atlavoto support thecom- 
 mission ; though the Lord Chancellor may, perhaps, upon a 
 representation of the circumstances attending the issuing 
 of such a commission, be induced to supersede it. (7) 
 
 ( 1 ) Ex parte Cartwright, 2 Rose, 
 2-50. 
 
 (2) Ex parte Goodwin, 1 Atk. 
 100. 
 
 (3) Sadler v. Leigh, 4 Cowp. 195. 
 
 (4) M' Connelly. Hector, 2 Bos. 
 &P. 115. 
 
 (5) Ex parte Baglehole, 1 Rose, 
 271. 
 
 (6) Roberts v. Hardy, 3 M. &. S. 
 53o. 
 
 (7) JcHis V. Mountfard, 4 B. &. 
 A. 256. This case was determined 
 upon the construction of the 53 G • i5.
 
 Sect. 1.] OF THE PETITIONING CREDITOR. 95 
 
 Though a public company have power by a private act of Amount 
 parliament to commence " all actions and suits" in the "^ dUt^^' 
 
 name of their secretary, as the nominal plaintiff, — this does 
 
 not enable the secretary to petition for a commission of ^f-, 
 
 bankruptcy against the debtor to the company. (1) company. 
 
 A penalty due to the crown (2) is a sufficient debt to sup- Penalty 
 
 port a commission, as well as an assessment for church and crown • 
 
 highway rates (3) ; and the assessor in the last case is a good church, or 
 petitioning creditor. rates^^^ 
 
 It has been questioned, but not determined, whether a Where 
 
 commission would be valid, that was sued out upon the ^""^ ^'"°" . 
 r , T 1 1 1 T 1 amount ot 
 
 petition oi three or more creditors, whose debts did not several 
 
 altogether amount to 200/., though the debt of one was ^^^^^ be- 
 more than 100/. (4) But it seems that such a commission 
 would be bad ; for though that one creditor might alone 
 have sued out a commission upon his own debt, yet if he 
 chooses to take one out in conjunction with other persons, 
 pursuant to the terms of the statute, — there does not ap- 
 pear any reason, why the regulations of the statute should 
 be dispensed with in such a case, which require the ag- 
 gregate of the debts to amount to 200/. 
 
 If after adjudication the petitioning creditor's debt be Though 
 found insufficient to support a commission, it is provided ^^ -"'^^ 
 now by the 18th section of the new statute, that in that Lord 
 case the Lord Chancellor, upon the petition of any other j-'"^"^^'' 
 creditor or creditors who have proved a debt or debts still order 
 sufficient to support a commission, (provided the same 
 were not incurred anterior to the debt of the petitioning 
 
 c. 102. since which there have been declared bankrupt before the time 
 
 innumerable other insolvent acts, advertised in the Gazette for the 
 
 the last of which is the 7 G. 4. hearing of the petition, or within 
 
 c. 57. but in none of them does two calendar months from the time 
 
 there appear to be any provision of filing it; and see ante, page 84. 
 
 that clashes with this decision, (1) Guthrie v . Fiske, 3 B. & C. 
 
 except only so far as relates to the 178. 3 Star. 151. 
 
 particular act of bankruptcy speci- (2) Cobb v. Symonds, 5 B. & A. 
 
 fied in the last-mentioned statute ; 516. 
 
 viz. the filing a petition to take the (.3) Lloyd v. Heathcote, 2 B. & 
 
 benefit of that act, which, it is de- B. 388. 
 
 clared, shall not be deemed an act (4) Smith v. Milles, 1 T. R.4S1. 
 
 of bankruptcy, unless the person be 
 
 commis- 
 sion to be
 
 <>♦ OF THE PETITIONING CREDITOR. [Cll. 4. 
 
 proceeded creditor,) (1) may order the commission to be proceeded 
 in, which will then of course liave the effect of rendering 
 the commission valid. 
 
 Section II. 
 Of the time of contracting and accruing of the Debt. 
 
 Must be The debt must either be contracted — or at all events be 
 
 whilst subsisting, — whilst the party is in trade (2) ; therefore 
 
 party is in though a creditor whose debt was contracted before (3) the 
 ^^ ^' party entered into trade, may sue out a commission on his 
 debt ; yet a creditor for a debt contracted cfter leaving off 
 trade cannot (4) do so, — though at the same time this is 
 no objection to such a creditor 'proving his debt, in order to 
 receive (5) a dividend. And if a simple contract debt is 
 contracted whilst the party is i?i trade, though he gives the 
 creditor a bond for it after leaving off trade, — this will 
 not be such an extinguishment of the debt, as to prevent 
 the creditor from suing out a commission onit(6); for 
 though the bond would be a bar to an action, yet it will 
 not prevent the creditor under a commission from proving 
 the consideration. But if a trader indebted in lOOZ. quit 
 his trade, and afterwards become indebted to the same 
 creditor in 100/. more, and then pays 100/., without saying 
 on what account, — the creditor in this case cannot take out 
 a commission upon the old debt ; for without special di- 
 rections as to the application of the payment, it will be 
 presumed to be applied in payment of the former debt. (7) 
 and before The debt must also be contracted by, or payable from, 
 sovie&ctox jjjg bankrupt previous to an act of bankruptcy ; and it is 
 
 riiptcy. 
 
 (1) For the relation to the act (4) Meggott v. Mills, 1 Ld. 
 of bankruptcy cannot be carried Raym. 287. 12 Mod. 159. Comb, 
 back, beyond the accruing of the 463. Dmve v. Holdsivorth, Peake, 
 petitioning creditor's debt ; and see 64. Penriz v. Daintry, 1 Sid. 411. 
 post, " Relation." (5) 1 Ld. Ravin.287. 
 
 (2) Doev. Lawrence, 2 Carring. (6) Peake, 64. 
 
 & P. 134. (7) Meggott V. Mills, Datoe v. 
 
 (3) Butcher wEaslo, 1 Doug.295. Holdnvorth, supra.
 
 Sect. 2.] OF THE PETITIONING CREDITOR. 95 
 
 not sufficient that it accrued previously to the issuing of Time of 
 the commission. (1) But it is now provided by Section 19. '^"^'Tli' 
 
 of the new statute, that no commission shall be deemed in- 
 
 valid by reason of any act of bankruptcy prior to the debt 
 of the petitioning creditor, provided there be a sufficient 
 act of bankruptcy subsequent to such debt. This enact- 
 ment is consistent with that of the 46 Geo. 3. c. 135., which 
 was passed to remedy a great inconvenience in the bank- 
 rupt law ; for before that statute, if any act of bankruptcy 
 whatever was shewn to have been committed by the bank- 
 rupt before the petitioning creditor's debt accrued, it ab- 
 rogated the commission, and all the subsequent proceedings 
 on it, — notwithstanding there was in reality an act of bank- 
 ruptcy after the petitioning creditor's debt. (2) So that the 
 petitioning creditor always encountered the risk of having 
 the commission superseded, and the assignees the danger of 
 failing in actions for the recovery of the bankrupt's pro- 
 perty, by the other party setting up any prior secret act of 
 bankruptcy. (3) This last-mentioned statute was, however, 
 confined to cases where the petitioning creditor had no no- 
 tice {^) of the prior act of bankruptcy ; but the new statute 
 includes all acts of bankruptcy (without any restriction) 
 before the petitioning creditor's debt. Therefore, as the 
 law now stands, — whether the petitioning creditor has 
 notice, or not, of any previous act of bankruptcy before 
 the contracting of his debt, it will not invalidate the com- 
 
 (1) Moss V. Smith, 2 Camp. 489. mission. And proof of a prior act 
 Clarke v. Askew, I Star. 458. In of bankruptcy would not of itself 
 one old case {De Golls v. Ward, invalidate the commission, — vvith- 
 Forrest, 243. 4 Brown Pari. Ca. out proving also a prior debt suffi- 
 327.) it was decided to be suffi- cient to sustain a commission. Rex 
 cient, if the petitioning creditor v. Bullock, 1 Taunt. 71. 
 
 was a creditor at the time the (3) Toms v. Mytton, 2 Str. 744. 
 
 commission issued ; but this Lord (4) But the petitioning creditor 
 
 Hardwicke considered was altered was not presumed to have had 
 
 by the 5G. 2. c, 30. ; and see 1 C. notice of an act of bankruptcy 
 
 B. L. 25. prior to his debt, although it might 
 
 (2) It was not, however, com- appear from the depositions to have 
 petent to the bankrupt himself to been actually committed before it. 
 set up a former act of bankruptcy, Thackrnh v. Wood, 3 Star. 141. 
 
 in order to invalidate the com-
 
 96 
 
 OF THE PETITIONING CREDITOR. [CIl. 4. 
 
 Time of 
 accruing 
 of debt. 
 
 Verdict in 
 tort, 
 before 
 judgment, 
 insuffi- 
 cient. 
 
 Debt con- 
 tracted 
 after ar- 
 rest, when 
 bad. 
 
 Accepting 
 a higher 
 security 
 imma- 
 terial. 
 
 Note 
 made 
 before, 
 though 
 indorsed 
 after bank- 
 ruptcy, 
 good. 
 
 mission, if there is a sufficient act of bankruptcy after the 
 accruing of the debt. 
 
 But the debt must be a complete and perfect debt before 
 the act of bankruptcy. When, therefore, the debt was 
 founded upon a verdict for damages for a tort obtained 
 before, but upon which judgment was not entered up till 
 after the act of bankruptcy, this was determined to be not a 
 sufficient debt to support a commission ; for the debt in 
 law does not accrue, until the judgment is regularly entered 
 on the roll. (1) So, where the act of bankruptcy on which 
 the commission is founded, is a lying in prison^ and the 
 debt was contracted after the arr^s/, it was holden insuffi- 
 cient. (2) But the acceptance of a security of a higher 
 nature (3), or the obtaining judgment (I") after an act of 
 bankruptcy will not, as we have seen, prevent the creditor 
 from suing out a commission on a bond fide pre-existing 
 debt. 
 
 A bill of exchange, or a promissory note, is a debt from 
 the date of it ; therefore an indorsee of a note made and 
 negotiated by the bankrupt before, but indoi'sed by the 
 payee to the creditor after an act of bankruptcy, is a good 
 petitioning creditor; for he is considered to stand in the 
 place of the indorser, — and the debt, as to the bankrupt, is 
 not created by the indorsement, but by the making of the 
 note. The drawer or maker of a bill or note contracts in 
 fact a debt, the moment the bill or note is given by him, — 
 and any subsequent indorsement relates to the original 
 debt (5); but it seems that the petitioning creditor must 
 shew, that it was indorsed to him before he sued out the 
 commission {6), though the debt need not exist in him, (if it 
 
 (1) Ex parte Charles, 14 East, 
 197. leVes. 256. Buss v . Gilbert, 
 2M. &S.70. 
 
 (2) Ex parte Daggett, Whitm. 
 B.L.42. 
 
 (5) Ambrose v. Clendon, Sec. ante, 
 89. 
 
 (4) Bri/ant v. Withers, 2 M. &: 
 S. 12.7. 2 Rose, 12. 
 
 (5) Ex parte Thomas, 1 Atk. 75. 
 2Wils. 135. Macarly V.Bar row, 
 2 Str. 949. Bingley v. Maddison, 
 1 C. B. L. 20. Glaister v. Hewer, 
 7 T. R. 498. Brett v. Levett, 
 15 East, 21.3. 
 
 (6) Rose V. Rowcroft, 4 Camp. 
 245.
 
 ^ J 
 
 Sect. 2.] OF THE PETITIONING CREOITOll's DEBT. 97 
 
 was contracted hy the hanJa-upt) before die act of bank- Time of 
 
 ruptcy. And where the commission had been sued out "■'^'^^^^'"S- 
 
 upon a bill of exchange for 100/., drawn and issued by a Bill not 
 
 trader before an act of bankruptcy, but becoming due ^"^' '*, 
 
 afterwards — and the debt was objected to, on the ground without ' 
 
 that, at the time of the act of bankruptcy, 100/. was not f'pJ'-icting 
 
 due, but only that sum minus the discount — the Court ' 
 
 thought it sufficient, upon the above principle, viz. that the 
 
 drawer contracts a debt the moment the bill is given. (1) 
 
 So, where the bankrupt was the drawer of the bill, and <Tood 
 
 committed an act of bankruptcy before either the bill was 'Jga'"st 
 
 due, or had been presented for acceptance, it was held though' 
 
 that the bill was a sufficient petitioning creditor's debt, — afterwards 
 
 although it appeared, that subsequent to the commission, the ac-' 
 
 the bill had actually been paid by the acceptor. (2) ceptor. 
 
 In these cases it will be observed, that the bills had not When bill 
 
 arriv^ed at maturity, before the act of bankruptcy committed 
 
 by the drawer ; but when the bill has already become due^ proved 
 
 it is then necessary, in a commission against the draiirr, to ^5^'"*^ 
 • 1 . n T 1 di-awer. 
 
 prove presentation and notice of dishonour. (3) 
 
 If two persons exchange acceptances^ and before the Exchange 
 bills ai'e mature, one of them commits an act of bank- o' ^^cept- 
 ruptcy, there is not such a debt due from him as will sus- 
 tain a commission ; for it would be inconsistent, that a man 
 who is not entitled to receive a shilling out of the bank- 
 rupt's estate, unless he pays his counter-bill, should be able 
 to stop the bankrupt's trade by taking out a commission. ( i) 
 And the acceptor of an accommodation bill, who, after the Acceptor 
 
 act of bankruptcy of the drawer, pays the amount of it to ^^ '^" ^^' 
 
 J -^ ^ . , , , conimoda- 
 
 a person to whom it had been negotiated, has not a good tion bill. 
 
 petitioning creditor's debt ; — for, before such payment, he 
 
 was a mere surety for the bankrupt, and did not becom.e a 
 
 {,!) Brett y.Levett,\3E■a?,t,'2^o. (4) Sarrat v. Austin, 4 Taunt. 
 
 (2) Ex parte Douthat, 4 B. & A. 200. Bleashy v. Crossley, 2 Car, 
 67. &?. 215. 
 
 (3) Cooper v. Machm, 1 Ring. 
 426. 
 
 H 
 
 due, what 
 to be
 
 98 
 
 OF THE PETITIONING CREDITOR'S DEBT. [Ch. 4. 
 
 Time of 
 accruing. 
 
 When 
 debt bar- 
 red by 
 statute 
 of limit- 
 ations. 
 
 creditor before he actualh/ paid the bill, which was after 
 the act of bankruptcy. ( 1 ) 
 
 It has been holden, by several of the earlier cases, that 
 a debt, though barred by the statute of limitations^ would 
 support a commission — on the ground that the statute did 
 not extinguish the debt, but the remedy — and that the 
 statute moreover extended only to the particular remedies 
 hy action therein mentioned. In one of the cases, indeed, 
 it was admitted, that the hanlcrupt himself might apply in 
 such a case to supersede the commission ; but that if he 
 submitted to it, a debtor of the bankrupt, or any third 
 person, could not avail himself of it as a defence to invali- 
 date the commission, and thus elude the payment of a just 
 debt to the assignees. (2) In one of the later cases, how- 
 ever — where the bankrupt had died before surrender, and, 
 consequently, had never the power to avail himself of the 
 objection — Lord Eldon decided, that a creditor might 
 do so, by applying to take out another commission upon 
 another debt. And in a luminous judgment delivered upon 
 this occasion, his Lordship, (after observing upon all the 
 antecedent cases on the subject,) questioned the law laid 
 down by Lord Mansfield in Fo\soler v. Bro^sn ; and added, 
 that he saw no reason why it was not competent to the bank- 
 rupt in the first instance to take the objection, and if he 
 waived it, then for the creditors to avail themselves of it. (3) 
 And in a subsequent case, where the same question oc- 
 curred, his Lordship intimated, that he had many additional 
 reasons confirmatory of his former decision. (4) It was, 
 indeed, held in one case, that as long as any remedy was 
 open by which the debt could be recovered, the objection 
 could not be taken, either by the bankrupt, or the creditors. 
 As, where in an action brought in the Common Pleas by 
 a bankrupt to try the validity of a commission, the de- 
 
 (1) Ex parte Holding, 1 G.& J. 
 97. 
 
 (2) Suiayne v. Wnllinger, 2 Str. 
 746. Quantock v. England, 2 Bl. 
 703. 5 Burr. 2628. Fowler v. 
 Brown, iC. C. L. 13. 
 
 (3) Ex parte JDeivdney. Ex 
 parte Seaman, 15 Ves. 494. 
 
 (4) Ex parte lii^ffct/, 2 Rose, 
 245.
 
 Sect. 2.] OF THE PETITIONINrCr CREDITOR'S DEBT. 99 
 
 fendant produced an office copy of a roll in the Court of Time of 
 King's Bench, by which it appeared, that an action had " ^"'^^^S - 
 been commenced there against the bankrupt and his partner 
 more than six years before, and that continuances of mesne 
 process had been regularly entered, and brought down to 
 the terra before the trial in the Common Pleas — the latter 
 Court decided, that the debt in this case was not barred by 
 the statute, as it might have been recovered against the 
 bankrupt in the Court of King's Bench. (1) But though 
 this decision was come to by the Court of Common Pleas 
 after two arguments, it has been lately reversed upon a writ 
 of error in the Court of King's Bench. (2) 
 
 An Exeaitoj' may sue out a commission on a debt due to Executor 
 his testator, even before probate of the will, provided he ^^^'^^^ 
 obtains the probate before the commissioners make their 
 adjudication. (3) And where the probate had an insuffi- Probate 
 cient stamp upon it in the first instance, it seems, that jn^F^'ent 
 upon a valid stamp being afterwards affixed to it, though stamp. 
 after adjudication, the probate would then be good by re- 
 trospection, and would support the executor's debt as 
 petitioning creditor. (4) 
 
 To sustain a commission upon a debt due to the Wife Debt due 
 dum sola, she must in general be petitioning creditor jointly ^? ''^ , 
 with her husband. (5) But a bill of exchange payable to 
 the wife before marriage, being an instrument transferable 
 at law, and the right of action shifting with the possession 
 of it, is to be considered, not as a chose m action, but 
 rather as a chattel personal vested in the husband by the 
 act of marriage (6); and it has been accordingly deter- 
 mined, that the husband alone may sue out a commission 
 upon a promissory note given to the wife dum sola. (7) 
 
 (1) Gregory v. Hurrill, 5 B. &. (5) Rimisey v. George, 1 M. &. 
 B. 212. 6 Moore, 525. 2d argumt. S. 176. Ex parte .!>Vaj3/£-5, 7 Vin. 
 iBing. 324. 8 Moore, 189. Abr. 67. Master \. Winter, Dav. 
 
 (2) Eden's B. L. 2d ed. 46. 464. 
 
 (5) Ex parte Paddy, Buck. 235. (6) M'Neilage v. HoUoiuay, 1 B. 
 sMadd. 241. &A. 218. 
 
 (4) Rogers v. James, 2 Marsh. (7) Ex parteiSar&er, 1 G. & J. 1, 
 425. 7 Taunt. 147. 
 
 H 2
 
 100 
 
 OF THE PETITIONING CREDITOK. 
 
 [Ch.4.. 
 
 Duties and 
 lia&Uiiiex. 
 
 Infant. 
 
 When either of the parties is an Infant at the time of 
 contracting the debt, whether debtor (1) or creditor (2), 
 the debt will not support a commission. But where a bill 
 of exchange was drawn upon a trader when an infant, but 
 accepted by him after he was of age, this was holden to be 
 a sufficient debt. (3) 
 
 Ail contracts in trade made by clergymen whilst in 
 lidly orders being, as we have already seen (4), absolutely 
 null and void, — it follows, of course, that any debt arising 
 from such a contract would not support a commission. 
 
 After exe- 
 cution 
 against the 
 body, can- 
 not sue 
 out a com- 
 mission. 
 
 Except 
 when. 
 
 But court 
 oi laiv no 
 power to 
 
 Section III. 
 General Duties and Liabilities of the Petitioning Creditor. 
 
 Where a creditor upon a judgment has sued out an 
 execution against the person of his debtor, he is estopped 
 from afterwards petitioning for a Commission of Bank- 
 rupt against him (5); for taking the body in execution is 
 considered in law a satisfaction for the debt (6); and he 
 cannot after thus making his election, change the nature 
 of his execution, and pursue his debtor's property. (7) But 
 where a defendant was in execution for a debt due to 
 two partners ; and afterwards one of the partners sued out 
 a commission against him, for a separate debt due to him- 
 self — this was held, not to be affected by the previous 
 proceeding for the joint debt. (8) And a proceeding under 
 a judgment, not against the person, is not any objection 
 to issuing a commission upon the unsatisfied debt. (9) Not- 
 withstanding, also, a plaintiff sues out a commission against 
 
 (1) Ex parte Barwis, 6 Ves. 601. 
 Ex parte Sydeholham, 1 Atk. 146. 
 
 (2) Ex parte Barrow, 3 Ves. 554. 
 Ex parte Moreton, Buck. 42. 
 
 (.3) Stevens v. Jackson, 4 Camp. 
 164. 
 
 (4) Ante,p.20. 57G..5.C.99.S.3. 
 
 (5) Barnsbi/s case, 1 Str. 65.3. 
 Cohen V. Cunnmghnro., 8 T. R. 123- 
 
 (6) Foster v. Jackson, Hob. 52. 
 Vigen V. Aldrirh, 4 Burr. 2482. 
 
 Jacques V. Withers, 1 T. R. 557. 
 Tanner v. Hague, 7 T. R. 420. 
 Clarke v. Clement, 6 T. R. 525. 
 
 (7) This observation is, of course, 
 to be taken subject to the provi- 
 sions on this head contained in the 
 different insolvent acts. 
 
 (8) Ex parte Stevens, 1 C. B. L. 
 1>5. 
 
 (9) Miles V. Enu'iins, 4 Esp. 194.
 
 Sect. 3.] OF THE PETITIONING CREDITOR. 101 
 
 his debtor, after previously taking him in execution — yet a Duties and 
 
 Court of law has no power to discharge the defendant out ^' "''■"^'^'^^- 
 
 of custody ; this being a matter for the peculiar consider- discharge 
 
 ation of the Lord Chancellor. (1) a ^^efeud- 
 
 ant. 
 The petitioning creditor has not the election, which the Petition- 
 
 other creditors of the bankrupt possess — either to come in ing credi- 
 
 as a creditor under the commission, or to sue the bankrupt ?* ,^^ "° 
 
 ' t election. 
 
 at law; for if he were permitted to proceed at law, the 
 commission must be superseded, which would materially 
 affect those creditors who had proved under it — as it would 
 render their proofs perfectly nugatory. His election is, 
 therefore, determined by taking out the commission ; and 
 this, not only as to the debt upon which the commission is 
 founded, but also as to every other claim which he may 
 have against the bankrupt; an incapacity which does not 
 attach to the general creditor; for if the latter has demands 
 against the bankrupt of a distinct nature, he may prove 
 one debt under the commission, and proceed at law for the 
 recovery of the other. (2) And though the commission has 
 not been opened, the petitioning creditor will equally be 
 prevented from proceeding at law against the bankrupt; 
 for as long as the commission is capable of prosecution, 
 this disability is held to attach. (3) 
 
 A petitioning creditor, however, who took out a separate Except 
 commission against one of three partners for a joint debt, ^^"*^"- 
 (which was afterwards superseded, and a joint commission 
 taken out by another creditor) is not deprived of his 
 election, under the second commission, to prove either 
 against the joint, or separate, estate. (4) But a joint cre- 
 ditor, who sues out a joint commission against partners, or a 
 commission against a trader as a surviving partfier, can only 
 prove, under that commission, against the joint estate, (5) 
 
 (1) M'Mastei- V. Kelt, 1 Bos.& (4) Ex parte SmU/i, 1 G. & J. 
 P. 302. '256. 
 
 (2) See post, "Election." (5) Ex parte Banicd, 1 G. & J. 
 (.3) Ex parte Piowse, 1 G. & J. 309. 
 
 92. 
 
 H 3
 
 102 
 
 OF THE PETITIONING CREDITOR. 
 
 [Ch.4. 
 
 Duties and 
 liabilities. 
 
 Irregu- 
 larity in 
 suing out 
 commis- 
 sion. 
 
 Liability 
 I'or costs 
 of com- 
 mission ; 
 
 for neces- 
 sary ex- 
 penses. 
 
 When al- 
 lowed 
 costs on 
 petition. 
 
 Penalties 
 ibr com- 
 pounding, 
 
 The petitioning creditor incurs many liabilities, if he 
 commits irregularity in suing out the commission ; for 
 the commission will not only in some cases be superseded 
 at his costs — but the bankrupt has also his remedy against 
 him, either by bringing an action on the case for damages, or 
 by procuring an assignment of the bond to the Chancellor. (1) 
 
 The petitioning creditor is also personally answerable 
 to the messenger for his costs, as taxed by the com- 
 missioners, up to the choice of assignees (2) ; as well, 
 indeed, as for all the costs of working the commission up 
 to that period; though, if the commission is proceeded 
 in, the assignees are then bound to reimburse him the 
 amount (3), that is, provided the funds of the bankrupt's 
 estate are sufficient for the purpose — and if insufficient, he 
 must make up the deficiency out of his own pocket. (4) But 
 this liability is only for the necessary expenses of working 
 the commission ; he is not, therefore, liable for the costs of 
 an unnecessary and fruitless journey undertaken by the 
 messenger to a distant place, without any authority from 
 himself. (5) And if a groundless application is made to 
 supersede the commission, the petitioning creditor will in 
 that case be allowed the costs of resisting the application 
 out of the estate. (6) 
 
 The commission is not issued for the benefit of the 
 petitioning creditor alone, but is in the nature of an exe- 
 cution for the benefit of all the creditors. Therefore it is 
 provided by the 8th section of the new statute, that if the 
 petitioning creditor after striking a docket, receive from 
 the bankrupt any money, or security, either for the whole, 
 or for any portion of his debt, whereby he may receive 
 more in the pound than the other creditors, the com- 
 mission is not only supersedable, but the petitioning cre- 
 
 (1) See post. 
 
 (2) Ex parte Johnson, 1 G. & 
 J. 2.5. Burivoodv. Kant, sCarring. 
 &P. 125. 
 
 (3) Hartop V. Juices, 2 M. & S. 
 438. Hart v. Wliile, 1 Holt,. 37b". 
 Finc/icfl V, How, 2 Camp. 278. 
 
 (4) Ex parte Roscoe, 1 Meriv. 
 190. 
 
 (5) Billings V. Waters, 1 Star. 
 36.5. 
 
 (6) Ex parte Botiomley, 5 Mad. 
 01.
 
 Sect. 3. J OF THE PETITIONING CREDITOR. 103 
 
 (liter is also liable to forfeit his whole debt, as well as to Duties and 
 J !• ,1 •- ^ 1 liabilities. 
 
 repay or deliver up the money, or security, to such persons 
 
 as the commissioners shall appoint, for the benefit of the 
 
 creditors. (1) And he equally incurs the forfeiture of his 
 
 debt, though some of the bankrupt's creditors are privy to 
 
 the transaction. (2) Where a petitioning creditor after or receiv- 
 
 the act of bankruptcy, but before the striking the docket, re- J1^ ?Yt " 
 
 ceived from the bankrupt a sum of money which reduced from the 
 
 his debt below 100/. — though Lord Eldon in such a case •^^"^'""P*- 
 
 refused to supersede the commission, as the payment could 
 
 not be retained against the assignees — yet, as the petitioning 
 
 creditor had not avowed that he held the payment for the 
 
 assignees, he was ordered to pay the costs of the petition 
 
 and inquiry. (3) Any bargain, also, made by the petition- Corrupt 
 
 ing creditor with the solicitor upon striking the docket — as ''^'^?^" . 
 
 o , ^ ... withsolici- 
 
 to proving the act of bankruptcy, or being indemnified tor a con- 
 
 against the expenses of issuing the commission — will be '^^^P*^* 
 considered a contempt of the Great Seal ; and any appli- 
 cation by the petitioning creditor to carry such a bargain 
 into effect will, of course, be dismissed. (4) But though 
 the petitioning creditor, after striking a docket, is pro- 
 hibited from receiving from the bankrupt any money, or 
 security, whereby he may receive more in the pound than 
 the other creditors, — yet it has been determined, that a 
 contract to sue out a commission, in consideration that a 
 friend of the bankrupt would give the petitioning creditor 
 five shillings in the pound on his debt, was not illegal, — 
 and that a bill given for the agreed sum was valid. (5) 
 
 The petitioning creditor is bound to be assistant to Bound to 
 
 the commission in all its stages, which (as it originates ^^ assist- 
 
 ° .^ . * ant to the 
 
 from himself) he is pledged to the validity of. Thus, commis- 
 
 where the petitioning creditor agreed with the bankrupt, ^'°"' 
 
 that he would not oppose his petition for a supersedeas, 
 
 in consideration of the bankrupt giving him a warrant of 
 
 (1) And see Ex parte Thomson, (3) Ex parte Miller, Buck. 283. 
 1 Ves. 157. Ex parte Stokes, 7 Ves. (4) Ex parte Wilson, Buck. 506. 
 408 . (5) Fry v. Malcolm, 5Taunt. 1 1 7. 
 
 (2) Ex parte Brine, Buck. 108. 
 VOL. I. * H 4
 
 104 
 
 OF THE PETlTlONINt; CKEDITOH. 
 
 [Ch. 4. 
 
 Ditties and 
 liabilities. 
 
 to make 
 previous 
 iiujuiries 
 as to trad- 
 ing, &c,; 
 to give in- 
 ibrmation 
 to the as- 
 signees ; 
 
 to produce 
 docu- 
 ments. 
 
 Wlietlier 
 bound to 
 give evi- 
 dence 
 against his 
 own coin- 
 mission. 
 
 attorney for the amount of his debt — the Court of Common 
 Pleas set aside the judgment entered upon it, Sir J. Mans- 
 field spying, that it was the duty of the petitioning creditor 
 to support the commission. (1) He ought, nlso, to make 
 due inquiry as to all the circumstances affecting the bank- 
 ruptcy, before he issues a commission (2); and to give 
 information to the assignees, upon every subject that comes 
 within his knowledge as petitioning creditor. He is bound, 
 therefore, to produce upon a trial, a bill of exchange, upon 
 the direct proof of which his own debt, as petitioning cre- 
 ditor, can be established. (3). And where shortly before 
 the commission he had taken out execution against the 
 bankrupt for part of the debt on which the commission 
 issued, he was ordered to furnish the assignees with all the 
 particulars of his debt — though this was in aid of an action 
 brought by them against the sheriff for the very purpose of 
 impeaching the execution, on the ground of a previous act 
 of bankruptcy (4). And where a petitioning creditor, after 
 the choice of assignees, stated to their solicitor, that the 
 commission was not a good one, because the consideration 
 of the bill on which it was sued out was for a gambling 
 debt, and the assignees were thereby put to expense in 
 establishing the validity of the commission, and also in- 
 curred further expenses by his refusal to produce the bill, 
 or to discover what had become ofit — Lord Eldon ordered 
 that he should pay all the costs, which he had thereby 
 occasioned to the assignees. (5) It was held by the late 
 Vice-Chancellor, that a petitioning creditor, in a separate 
 subsisting commission, was not compellable to attend as 
 a witness before the commissioners, in support of a siib- 
 sequent joint commission — as that would be in' effect to 
 destroy his own proceedings (6) ; but Lord ElddVi subse- 
 quently decided the contrary. (7) 
 
 (1) Thomas \. Rhodes, 5 Taunt. 
 478. 
 
 (2) Ex parte Blachnore, 6 Ves. 5. 
 (.3) Ex parte Glossop, 2 Rose, 
 
 ."86. F.\ pnrlc Jac/isim, Ibid. 1«8. 
 Ex parte Graves, t G. & J. 86. 
 
 (4) Ex parte Glover, 2 G. & J. 
 CO. 
 
 (5) Ex parte Glossoj), supra. 
 
 (6) Ex parte Stones, 1 G. &J. 7. 
 (T) Ex parte Harrison, 2 G. & J. 
 
 135.
 
 Sect. 3.] OF THE PETITIONING CREDITOR. 105 
 
 The petitioning creditor is also estopped by the affidavit Dutiex and 
 
 of debt, which he makes on suing out the commission, from ''"^'^'''<^*- 
 
 contending afterwards, that the debt was insufficient to Estopped 
 
 support it. Thus, where the bankrupt's assignees sued ^vafTitlavit 
 
 . of debt. 
 
 him for the bankrupt's money which he had got into 
 
 his hands, and it accidentally came out by a statement of 
 
 accounts, that the balance due from the bankrupt was less, 
 
 than what was sufficient to sustain the commission, — the 
 
 petitioning creditor was not allowed to avail himself of 
 
 that fact, in order to defeat the action. (1) 
 
 When any action is brought for the recovery of property When 
 
 wrongfully seized bv the messeno;er under the commission, ^"°"''' ^f 
 . ^ . . " , ° made a de- 
 
 the petitionmg creditor should be made the defendant fendant; 
 
 in such action, and not the messenger — if the latter has 
 only acted in obedience to the warrant of the commis- 
 sioners — for, in such a case, the messenger would be en- 
 titled at any rate to a verdict. And if the plaintiff recovers liability 
 against the petitioning creditor, the latter is liable (2) not o°/action- 
 only for the taxed costs of the action, but is also bound to 
 repay the plaintiff such costs as he is obliged to pay to the 
 other defendant. It is provided, also (3), in every such proof of 
 action, that proof of the defendant being petitioning tionin<r 
 creditor is sufficient for the purpose of making him liable, creditor 
 in the same manner, as if the act complained of had been ^^ j^^^j.^ 
 done or committed by him. him liable. 
 
 As to the competency of the petitioning creditor as a 
 witness, in actions where the validity of the commission 
 comes in question, the reader is referred to a subsequent 
 chapter, which treats on Evidence in actions by or against 
 the assignees. (4) 
 
 (l) Harmcr \. Davis, 7 Taunt, v. Strelton, I Star. 40 ; and see 
 57". 1 Moore, 500. Sed vide post, " Evidence." 
 Greenv. Junes, '2Ceim^.'ii2. Dow- (2) Sectional. 
 deti V. Fowler, 4 Camp. 38. Loyd (3) Section 32. 
 
 (4) See post, Ch.XVII.
 
 106 
 
 CHAP. V. 
 
 OF THE COMMISSION. 
 
 1 . Of issuing the Commission. 
 
 2. Of the general Effect of the Commission. 
 
 3. Of a Second Commission. 
 
 4. Of a Joint Covimission. 
 
 5. Of 7'ene-doed and auxiliary Commissions. 
 
 6. Remedif 'where Commission maliciously sued out. 
 
 For the Costs of issuing the Commission, see post, 
 Chapter on Costs. 
 
 Striking a 
 docket ; 
 practical 
 directions. 
 
 Section I. 
 O/' issuing the Commission. 
 
 xiv sections 12 and 13 of the new act, any one or more 
 of a trader's creditors to the amount required by the sta- 
 tute (1), may petition the Lord Chancellor to issue a com- 
 mission against him, previously making an affidavit of debt, 
 and giving bond to the Lord Chancellor, for duly proving 
 the debt, and the act of bankruptcy. 
 
 If the petitioning creditor reside in London or the vici- 
 nity, he must make an affidavit of his debt (2) before a 
 Master in Chancery, in which he swears that he believes 
 his debtor is become a bankrupt, (an allegation, however. 
 
 (1) Ante, page 88. 
 
 (2) See form. Vol. II. Before 
 this proceeding, however, search 
 should be made at the bankrupt 
 ofiice, in order to ascertain if any 
 (locket has been alread}' struck ; 
 for which purpose the docket-book 
 
 may be had free access to, from 
 ten in the morning till three in 
 the afternoon, and from six to 
 eight in the evening. See General 
 Orders, 29th Dec. 180(5, and 13th 
 April 1816, and, ex parte Smith, 
 \d ¥65.475.
 
 Sect. 1.] OF ISSUING THE COMMISSION. 107 
 
 which is not required by this or any former statute, but is Striking 
 merely a practice adopted by the authority of the Great " "^ ^ ' 
 Seal)(l); and the bond to the Chancellor must be executed 
 at the Bankrupt office. If the creditor resides in the coimiri/, 
 the affidavit is then made before a Master Extraordinary in 
 Chancery, and the bond executed at the same time, and then 
 both are sent to an agent in London to do what is needful. 
 When the affidavit and the bond are in either case de- 
 livered at the Bankrupt office, an entry must be made in 
 the docket-book (2), and the petitioning creditor is then 
 said to have stnicJc a docket. After this, the solicitor 
 must, within the next four days, bespeak the commission — 
 upon which he pays the fees for it, and the clerks make 
 out then a petition to the Chancellor, and procure also a 
 commission from the office of the patentee. These are tacked 
 together, and at one corner of the petition Xh^^at is written: 
 *' Let a commission issue, as prayed, &c." The petition 
 and commission are then taken to the Chancellor, who 
 signs the ^at ,• after which the commission is immediately 
 sealed with the Great Seal, — and this is done either in pri- 
 vate, or at a public Seal. The commission always bears 
 date the day it is sealed ; and that date is then entered 
 under the column left for it in the docket-book. 
 
 Where two parties apply at the same time to strike a When two 
 docket, and both are prepared to issue a commission, they \^Y^^^^ ^^' 
 must draw lots at the Bankrupt office for the preference.(3) ther, must 
 And where instructions for a docket were received from ^^^ ^°'^*' 
 the country on a Sunday by a solicitor, who before the 
 office opened on the following morning received similar 
 instructions from another client, it was decided that the 
 same rule of practice should be followed. (4) If, however, but if only 
 only one party is prepared to issue the commission, then ^^^^^^^^^ 
 the commission is directed to be issued to the person who is entitled 
 
 (1) I4Ves.88. (5) General Order, 29th Dec- 
 
 (2) See General Orders, 2nth 1806. 
 
 Dec. 1806, and 1 3th April 1815, (4) Hat/es's case, 13 Ves. 197. 
 2 vol.
 
 108 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 Striking 
 a docket. 
 
 to the 
 commis- 
 sion. 
 
 When 
 commis- 
 sion super- 
 seded, any 
 creditor 
 may strike 
 a fresh 
 docket. 
 
 When va- 
 riance in 
 the name. 
 
 Affidavit, 
 &c. cannot 
 be re- 
 sworn. 
 
 is so prepared (1); for the drawing of lots only applies to 
 those cases, where both parties are equally prepared to 
 issue a commission forthwith. When one party, there- 
 fore, was not prepared to certify respecting the intended 
 commissioners in a country commission, as required by the 
 general order (2), the other party was held entitled to the 
 commission. (3) 
 
 Where a commission is ordered to be superseded, 
 though on the petition of the assignees, any other creditor 
 may strike a fresh docket against the bankrupt after the 
 order is pronounced, and even before it is drawn up or 
 signed by the Lord Chancellor; — and the claim of the 
 assignees to issue a fresh commission, is not greater than 
 that of any other creditor ; the rule being, that whoever 
 strikes i\\e^rst docket will be preferred. (4) 
 
 If there is any variation in the spelling of the name of 
 the bankrupt, even of one letter, it is the practice at the 
 Bankrupt office to permit a second docket to be struck by 
 any other creditor, it being taken for granted, that the 
 name is that of a different person (5); and the party having 
 the Jirst regular docket in the office, has been considered as 
 entitled to the priority. (6) But where the solicitor, who 
 struck the second docket in a case of this kind, must have 
 fmotuji it was the same person, — the Lord Chancellor 
 ordered the second commission to be superseded at the 
 costs of the solicitor. (7) If there is any error in the affi- 
 davit, or bond, u{)on which a commission has issued, it has 
 been determined that they cannot be re-sworn or re-exe- 
 cuted — having been already used for all the purposes for 
 which they were made; — but that there must be an entire 
 new docket. (8) 
 
 (1) General Order, 29th Dec. 
 1806. 
 
 (2) 25th July 1817. 
 
 (5) Ex parte Hardman, 1 Jac. & 
 W. 293. 
 
 (4) Ex parte JBoiuer, 1 G. & J. 
 262. 
 
 (5) eVcs. 'i:;'i. iRosc,5i4. i G. 
 
 8{J. 22. 
 
 (6) Ex parte Stacker, 1 G. & J. 
 249. 
 
 (7) Ex parte Ward, 1 Rose, 514. 
 
 (8) In re Rulledge, 2 Rose, 369. 
 Sed qu. Whether this would be 
 now held necessary, as there is no 
 damp duty imposed any longer 
 upon either the afTidavit, or the 
 bond.
 
 Sect. 1.] OF ISSUING THE COMMISSION. 109 
 
 A docket ought not to be struck, merely as a measure of Striking 
 
 precaution, to prevent another creditor from taking out a ^ "■ocket. 
 
 commission. (1) And where it is used as the means of Docket 
 
 bartering: for some arrangement, it will, as we have already }'^^"'°'"^" 
 
 " <-> J improper 
 
 seen, be considered a contempt of the Great Seal. (2) purpose, a 
 
 When a month has passed from the striking of the contempt, 
 docket, without any thing further being done, the practice 
 was in such a case, not to let a commission issue, without an 
 affidavit that the petitioning creditor's debt had not been 
 paid. (3) But by a subsequent general order of Lord 
 Eldon (4), it is declared, that when a docket has been 
 struck more than one calendar month without a commis- 
 sion having been bespoke, the docket shall be considered 
 as expired, and of no effect for the purpose of issuing a 
 commission. 
 
 The affidavit made by the petitioning creditor is general, Affidavit. 
 and need not state the particulars by which the bankrupt 
 became indebted (5) ; and if it state that the debt is for 
 goods sold and delivered, though the petitioning creditor 
 had at the time entered up judgment in an action for the 
 debt, this has been held sufficient (6); nor will it beany 
 objection to the commission, that the petitioning cre- 
 ditor had not relinquished his judgment. The provision Irregu- 
 in the statute is directory only, and not conditional; — there- aTooj"^' 
 fore, where it appeared upon the face of the affidavits of four ground at 
 petitioning creditors, that their debts did not amount to rj 5- ^"' 
 200/., though their debts proved before the commissioners the cora- 
 amounted to more than that sum — it was held that this "^'ssion. 
 irregularity did not make the commission void at law, 
 though it might affiard a ground of application to the Lord 
 
 (1) 16Ves. 145. contained in the order; but this 
 
 (2) 18 Ves. 298. ; and see ante, recital does not agree exactly with 
 104. what is stated by the Lord Chan- 
 
 (3) Ex parte BucMey ,'Qnck.o6'7 . cellor in that case. 
 
 (4) 28th May 1819. This order, (5) Ex parte Wood,\ Atk. 155. 
 which was made shortly after ex Bryant y. Withers, l\. &B. 211. 
 parte Buckley, recites the previous (6) In re Bryant, 1 Rose, 283. 
 practice at the bankrupt office, as Bryant v. Withers, 2M. &S. 12.T. 
 being consistent with the directions 2 Rose, 8.
 
 110 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 Affidavit. 
 
 Not evi- 
 dence of 
 the debt 
 in any sub- 
 sequent 
 proceed- 
 ing. 
 
 As to 
 stating 
 belietofan 
 act of 
 bank- 
 ruptcy. 
 
 Petition 
 must agree 
 with the 
 affidavit. 
 
 Bond. 
 
 Chancellor to supersede it — or to stay proceedings till the 
 proper affidavits were made. (1) The affidavit, indeed, is 
 of no use in any period subsequent to the commission; for 
 it is not e\en prima facie evidence of the debt, either before 
 the commissioners, or in any action where the debt is dis- 
 puted — which must be proved by other evidence. (2) 
 
 A docket should not be struck without some solid 
 ground of belief, that the trader has committed an act of 
 bankruptcy (3) ; and the affidavit, as to this matter, is too 
 often made with a precipitancy which has called for the 
 censure of the Court. (4) But if proof can be made of an 
 act of bankruptcy before the issuing of the commission, 
 though it was in fact committed after the swearing of the 
 affidavit, and the striking of the docket — the commission 
 will not on that account be rendered invalid. (5) Thus, 
 where the act of bankruptcy was by lying in prison, and 
 the docket was struck before the requisite period of im- 
 prisonment had expired, the commission was nevertheless 
 supported, which was issued after the expiration of such 
 period. (6) 
 
 The petition must agree with the statement of the debt 
 in the affidavit. Thus, where the secretary to a public 
 company struck a docket for a debt due to the company^ 
 but the petition stated the debt to be due to him in his oxon 
 right — it was held, that the commission could not be sup- 
 ported upon a debt due to the company. (7) 
 
 The bond, which the petitioning creditor is required to 
 give to the Lord Chancellor, is in the penalty of 200/., 
 conditioned for proving his debt as well before the com- 
 missioners, as at any trial at law, in case the commission be 
 contested — and also for proving the party to have com- 
 
 (1) Hill V. Heale, 2 N. R. 1 96. 
 
 (2) Ibid. 
 
 (3) Ex parte Bourne, 16 Ves. 
 145. 
 
 (4) 6Ves. 4.>1. 14 Ves. 83 1 V. 
 & B. 55. 
 
 (5) Hopper v. Richmond, 1 Star. 
 507. 
 
 (6) Ex parte Dufrene, 1 V. & 
 B. 5 1 . 1 Rose, 353. Ex parte Pax- 
 ton, 15 Ves. 462. 1Vi/down's case, 
 1 4 Ves. 80. 
 
 (7) Guthrie v. Fiike, 2 Star. 1 r>\
 
 Sect. 1.] OF ISSUING THE COMMISSION. HI 
 
 mitted an act of bankruptcy, and for proceeding in such Bond. 
 
 commission. The bond, however, need not be precisely ^ T" 
 
 of the same date as the affidavit; as in the case of striking mental 
 
 a docket, where the amount of the debt in the affidavit was ^^"^^'^ 
 
 when per- 
 incorrectly stated, the Lord Chancellor ordered a sup- mitted. 
 
 plemental affidavit to be made without any new bond being 
 
 given. (1) 
 
 The bond must be executed bi/ the petitioning creditor ; As to ex- 
 an infant^ therefore, who is unable to bind himself by ^'^"t'on of 
 bond, cannot be a petitioning creditor, — nor will any other infant 
 person be allowed to execute the bond for him. (2) And 
 where the debt to support the commission is made up of 
 several debts — each of the petitioning creditors being re- 
 quired to make an affidavit of his debt, and to enter into the 
 bond — if one of these, therefore, is an infant, the commis- 
 sion cannot be supported. (3) Where husband and 'wife Husband 
 are petitioning creditors, the bond should be executed by ^ " 
 the husband, (i) 
 
 Where partners are petitioning creditors, it will be suf- Partners, 
 ficient if one of them makes the affidavit, and executes the 
 bond (5) ; and the same also with respect to assignees. (6) Assignees. 
 
 By an order of Lord Apsley's (7), the mere striking a Sealing 
 docket was directed, in no case, to prevent the issuing of ^o'"""*- 
 a commission by any other creditor, so as such second 
 application was not made, before the expiration of four 
 days after the first docket struck. A practice, however, a 
 good deal at variance with the terms of this order, was 
 long permitted to grow up at the Bankrupt office, and 
 which, Lord Eldon has observed, affiDrded testimony that 
 the order itself was inconvenient to be followed ; and he 
 
 (1) Ex parte Moughan, 1 G. & (5) Ex parte Hodgkimon, 2 Rose, 
 J. 365. 1 72. 1 9 Ves. 29 1 . Roberts v. Har- 
 
 (2) Ex parte Barrow, 3 Ves. die, 2 Rose, 174. (note). Ex parte 
 554. Benjamin, Buck. 44. Ex parte 
 
 (3) Ex parte Morton, Buck. 42. Peele, Buck. 457. ; but see ante, 8 9. 
 
 (4) Rumsey v. George, 1 M. & S. (6) Ex parte Blakey, 1 G. & J. 
 176. ' 197. 
 
 (7) 14th Feb. 1774. 
 
 sion.
 
 112 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 Sealing 
 conmiix- 
 sion. 
 
 When 
 commis- 
 sion should 
 be sealed. 
 
 Commis- 
 should be 
 sealed at 
 the 7iext 
 immediate 
 public seal. 
 
 thought also that if strictly acted upon, it would open a 
 door to jrreat fraud. (1) It has been, therefore, altered 
 and modified by subsequent orders, both of Lord Erskine 
 and Lord Eldon (2), by which it is directed, that if, after 
 striking a docket, the petitioning creditor do not wiihin 
 four days afterwards order a commission to be sealed at 
 the then next public seal — in case there shall be one within 
 seven days after the docket shall be struck — or by a private 
 seal within eioht days after strikino; the docket — and cause 
 the same to be sealed accordingly, then any other person 
 may sue out a commission, without any notice to the per- 
 son who first applied for one. An application for a com- 
 mission, on the evening of the fourth daij from striking 
 the docket, immediately before 8 o'clock (the hour of shut- 
 ting up the office), is sufficient; and, if necessary, the clerk 
 ought to remain there a quarter of an hour later, to enable 
 the party to proceed next morning to have his commission 
 sealed. (3) When the 4th day is a holyday, the party 
 should nevertheless apply for the commission on_that day, 
 at the chambers of the clerk of the Secretary of Bankrupts ; 
 for, if he does not, he runs the risk of losing the commis- 
 sion, inasmuch as whoever applies first the next day has a 
 right to it. (4) 
 
 The meaning of the direction in the orders is, that the 
 commission shall be sealed at the next immediate })ublic seal 
 within the seven days, without any discretion on the part of 
 the officers at the Bankrupt office to defer the sealing, till a 
 subsequent public seal within the seven days (5); therefore 
 v.'here there was a seal on the 5th, and another on the 7th 
 day, it was held that the commission must be sealed on the 
 5th. But notwithstanding the terms of the order, and 
 though the creditor does not bespeak the commission (that 
 is, order it to be sealed,) until the 5th day, yet if he does 
 
 (1) Ex parte Leicester, 6 Ves. (.") ]<!icholls\ case, 19Ves. 616. 
 455. (4) Ex parte Cooper, 12 Ves. 
 
 (2) 29th Dec. 1806. 15th April, 481.; and see 1 Mont. Dig. 77. 
 1815. (5) In re Lambert, 1 Rose, 258.
 
 Sect. I.] OF ISSUING THE COMMISSION. 
 
 113 
 
 this before any other creditor applies to strike a docket, 
 the application of the first creditor will be preferred. (1) 
 
 Where, however, from some misunderstanding, or from 
 the hurry of business at the Bankrupt office, the clerk 
 omitted to get the commission sealed, or make the proper 
 entry in tlie docket-book, (without which the docket is not 
 considered to be struck (2),) previously to 'the application 
 of another solicitor to strike a docket, Lord Eldon thought 
 it would be construing the order too strictly, to deprive 
 the first solicitor ol his priority, which had not in fact been 
 endangered through any fault of his. (3) 
 
 Upon some occasions, the petitioning creditor has been 
 limited to a shorter time for sealing, than what is specified 
 in the general orders : as where he had done all other pre- 
 vious acts, but purposely delayed sealing the commission, 
 and took that as an objection to a petition by the bank- 
 rupt to supersede it, Lord Eldon limited the time for 
 sealing the commission to three days. (4) 
 
 Where a creditor, who had struck a docket, ordered the 
 commission within the four days, and afterwards counter- 
 manded the order, and then again changed his intentions, 
 he was, notwithstanding this, held to be entitled (in the 
 absence of any coHusion) to have the commission sealed on 
 the 7th day, in preference to another creditor, who struck 
 a docket betv.een the countermand of the order, and the 
 7th day. (5) 
 
 The commission must be sealed after the act of bank- 
 ruptcy ; but it is no objection that the act of bankruptcy is 
 
 Sealins. 
 
 First doc- 
 ket not 
 prejudiced 
 by a mis- 
 take at the 
 bankrupt 
 office. 
 
 (1) III re Graham, Buck. 529. 
 
 (2) General Order, 26th Dec. 
 1806. 15th April, 1815. 
 
 (5) Ex parte £('«/«i, l Rose, 162. 
 2 Rose, 32.5. Ex parte Slatford, 
 Buck. 1. In one of these cases 
 (2 Rose, 524.) Lord Eldon inti- 
 mated, that it would be an improve- 
 ment to the above orders, to insert 
 a provision, that both the clerk 
 of the solicitor appljing for the 
 docket, and the clerk at the Bank- 
 
 rupt office should indorse, as a 
 memorandum upon the documents 
 for the docket, the time of their 
 being delivered at the Bankrupt 
 office. Such a provision, however, 
 does not seem to have been ever 
 made by any general order to that 
 effect. 
 
 (4) Ex parte Williams, 2 Ves. & 
 B. 255. 
 
 (5) Anon. 1 Mont. Dig. 77. 
 
 When a 
 less time 
 will be 
 limited for 
 sealing. 
 
 When first 
 creditor 
 entitled to 
 prefer- 
 ence, not- 
 withstand- 
 ing coun- 
 termand. 
 
 Must be 
 sealed 
 a/ter act 
 of bank- 
 ruptcy.
 
 114 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 Sealing. 
 
 Once seal- 
 ed in the 
 night. 
 
 Distinc- 
 tion be- 
 tween 
 aiuarding 
 an J isxu- 
 ing. 
 
 Commis- 
 sion a 
 matter of 
 riulit ; 
 
 as well as 
 the adju- 
 dication. 
 
 Proceed- 
 ings not 
 stayed 
 before 
 opened. 
 
 when pub- 
 lication re- 
 strained ; 
 
 committed the same day, provided it be committed before 
 the actual sealin«T of the commission. (1) And upon one 
 occasion, where it was of importance to prevent the oper- 
 ation of an extent ii<jainst the bankrupt's effects, Lord 
 Eldon, in order to effect this object, actually sealed the 
 commission in the middle of the ni<rht. (2) 
 
 When the commission has passed theGreatSeal, it is said 
 to be an'ardeJy which is a matter distinct from the issuing of 
 it; for it is not strictly issued, until it is delivered into the 
 messenger's hands for the purpose of being opened. (3) 
 
 With respect to the issuing of the commission, the 
 words of the 12ih section of the new statute follow those 
 in the KSEIiz. c. 7., which have always been construed to 
 be imperative on the Lord Chancellor. The granting of 
 the commission, therefore, if the creditor has pursued tiie 
 directions of the statute, is not discretionary on the part 
 of the Chancellor, but a matter of right on the part of the 
 creditor. (4) And not only is the granting it a matter ex 
 dehito justiti(E, but the petitioning creditor has also a right 
 to have the adjudication of the commissioners under it, if 
 the trading, the act of bankruptcy, and his debt can be 
 proved belbre them. The Lord Chancellor, therefore, 
 will not stay proceechngs upon a commission before it is 
 opened, upon a mere allegation that tiiere is no petitioning 
 creditor's debt; for that would virtually be to refuse to 
 issue the commission. (5) Upon some occasions, however, 
 the Chancellor will restrain the publication of the bank- 
 ruptcy in the Gazette, without otherwise interfering with 
 
 (1) Ex parte Dohree, 8 Ves. 82. 
 Wydoiuid case, 14 Ves. 87. Ex 
 parte Dnfrene, 1 V. & B. 54. 1 Rose, 
 5.35. Ex parte Pautun, 15 Ves. 
 462. 
 
 (2) 14 Ves. 87., in Castell and 
 PowelPs bankruptcy. 
 
 (5) Ex parte Freeman, 1 V. & B, 
 59. Watkins v. Maund, 3 Camp. 
 509. 
 
 (4) BackweU'sca.'ie, 1 Vern. 1.52. 
 2Ch. Ca. 191. Ex parte Wilso7i, 
 1 Atk.219. 
 
 (5) It was formerly the practice 
 to enter caveats in the Bankrupt 
 office against the issuing of com- 
 missions, which was frequently pro- 
 ductive of fraud; as by that means 
 an opportunity was given to per- 
 sons, against whom the commission 
 was to be taken out, to make away 
 with their effects. But ever since 
 Lord Hardwicke expressed his dis- 
 approbation of the practice, the 
 caveat fell into disuse. Ex parte 
 Parsont, 1 Atk. 72.
 
 Sect. 1.] OF ISSUING THE COMMISSION. 115 
 
 the progress of it ; as where a person, against whom it Sealivg. 
 
 issued, stated on oath that he was solvent, and had com- 
 
 mitted no act of bankruptcy, and offered to pay the amount 
 
 of the petitioning creditor's debt into court. (1) But but pro- 
 
 where there is a clear case of frcwd, the Court will then <^^^'''"ss 
 I 1 r' I r V 1- . stayed in 
 
 make an order to stay proceeduigs berore adjudication, it case of 
 
 being its duty to put an end to fraud without loss of fi'''»"'l> 
 time (2): as where an equitable creditor signed a compo- 
 sition deed with his debtor, and afterwards attempted to 
 sue out a connnission in the name of his trustee. (3) 
 
 Tile commission is directed to five commissioners (4), to whom 
 empowering four or three of them to execute it. These, ''•'"ectecl. 
 where the commission is to be executed in London^ are 
 generally all barristers specially appointed by the Lord 
 Chancellor. 
 
 If the commission is to be executed in the Country Country 
 (which can only be when the bankrupt resides above 40 miles <^P'iiniis- 
 from London), two of the commissioners at the least must be vvho'm 
 barristers — who are quorum{o) commissioners — and the re- d''"t:cted; 
 mainder may be attornies. Their names are delivered in by 
 the solicitor at the Bankrupt office, when he bespeaks the 
 commission; and those commissioners, who are banisters, 
 must be resident at or near the place where the commission 
 is to be executed (6) ; no London commissioner's name being 
 allowed to be iriserted in a Country commission, without a 
 certificate, tliat it is with his express consent(7), — nor with- 
 out a certificate also that he intends to act. If there are when may 
 not two barristers resident within 20 miles of the place I'e direct- 
 where the commission is to be executed, or who will be attornies 
 willing to attend there, or at some convenient place in 
 the neighbourhood, for the fees allowed In' the statute, the 
 commission may then be directed to five attornies ; but in this 
 case the solicitor applying for the commission must make an 
 
 (1) Ex parte Fletcher, 1 Rose, (5) See Section 23. 
 
 336". (6) Lord Loughborough's Order, 
 
 (2) Ex parte £a</ie?-, Buck. 426. 12th August 1800. 
 
 (5) Ibid. (7) Lord Eldon's Order, 3d Feb. 
 
 (4) And see next Chapter. 1802. 
 
 I 2
 
 116 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 Countrtj 
 commis- 
 sion. 
 
 When 
 comm's- 
 sioners 
 falsely de- 
 scribed. 
 
 Where to 
 be exe- 
 cuted. 
 
 No com- 
 missioner 
 must be a 
 creditor. 
 
 affidavit of the fact. ( 1 ) Any evasion of the general orders 
 as to these matters — such as carrying the commission to a 
 distant country town, to get it out of the reach of barristers 
 residing near another town, where it might with as much 
 propriety be executed — will be a ground for superseding 
 tlie conimission, at the costs of the party wlu) took it out. (2) 
 But when no barrister resides so near, as to be wiUing to 
 attend witiiout his travelHng expenses being paid, this is 
 an excuse for dispensing with the orders (3), upon a proper 
 statement of the fact upon afiidavit, when the commission 
 is applied for. (4) Where a sohcitor, however, by a false 
 description (in adding " esquire" to the names of two 
 sohcitors), obtained a conmiission to be directed to them, 
 it was superseded, and he was charged with costs. (5) 
 A Country commission, it seems, should be executed 'wiihin 
 ten miles of the place to which it is issued (6) ; and the 
 solicitor applying for it is required to certify, that none 
 of the commissioners, whose names he delivers in, is a 
 creditor of the bankrupt ; if any creditor's name be in- 
 serted as a commissioner, the commission will be super- 
 seded. (7) 
 
 (1) General Order, 15tli August, 
 1821. Ex parte Goof/)«aH, 5 Mad. 
 462. 
 
 (21 Ex parte Harhin, 1 Rose, 58. 
 
 (3) Ibid. 
 
 (4) Ex parte Conwar/, 13Ves.62. 
 
 (5) Ibid. 
 
 (6) 1 Mont. Dig. 651. 
 
 (7) Ex parte Story, Buck. 70. 
 Ex parte Mathews, 1 G. & J. 164. 
 Ex parte Prosser, 2 Rose, 570. Ex 
 parte Crudwell, 2 Mad. 292. When 
 Lord Eldon was appointed to the 
 seals, it seems that great frauds 
 had been frequently practised in 
 suing out Country commissions ; 
 and very soon after his taking upon 
 himself the office of Chancellor, he 
 was induced to notice the frau- 
 dulent practices which then pre- 
 vailed, " Commissions," he says, 
 " as they are frequently conducted 
 in the country, are little more than 
 
 stock in trade for the commis- 
 sioners, the assignees, and the 
 solicitor. Instead of solicitors at- 
 tending to their duty as ministers 
 of the court, commissions of bank- 
 ruptcy are treated as matter of 
 traffic, — A. taking out the commis- 
 sion — B. and C. to be his commis- 
 sioners. Tiiey are considered as 
 stock in trade, and calculations are 
 made, how many commissions can 
 be brought into the partnership! 
 Unless the Court holds a strong 
 hand over Bankruptcy, particularly 
 as administered in the country, it 
 is itself accessary to as great a 
 nuisance as any known in the land, 
 and known to pass under the forms 
 of its law." In one of the cases 
 which drew forth these strong ob- 
 servations of His Lordship, the 
 solicitor who sued out the com- 
 mission actually united all the
 
 Sect. 1.] OF ISSUING THE COMMISSION. 117 
 
 Where there is a competition among the creditors for Country 
 a cowitri/, and for a toxi:n commission, the proper practice ^P'"'""' 
 
 is to make a special application to the Lord Chancellor, to 
 
 direct that to issue which is most convenient for the ireneral °''=^ctice, 
 benent or the creditors ; and notice of the application a competi- 
 should be given to the opposite party. But though the ^^°"' 
 Chancellor will, when two dockets have been struck, direct 
 that to be proceeded on, which is most for the convenience 
 of the crechtors at large, — yet where a commission has once 
 issued, it will not be superseded, on the ground of its being 
 inconvenient to any class of creditors, with respect to resi- 
 dence merely. (1) If there is no competition, the practice 
 is merely to apply at the Bankrupt office for a coimir?/ com- 
 mission, giving in the names of the commissioners ; and the 
 Lord Chancellor will not interfere in making any order on 
 the subject. (2) It is not sufficient, in suppox't of the ap- 
 plication for a country commission, (when it is opposed,) to 
 state merely in the affidavit, that the major part in value of 
 the creditors do not live within fifty miles of London, but 
 at a certain town in the country; the affidavit ought to be 
 more particular, as to the respective amount of the Lon- 
 don and the country debts. (3) 
 
 Any person, though he is ?ioi a solicitor, may sue out a who may 
 commission of bankruptcy. (4) ^"^ °^^}- ^ 
 
 The bankrupt should, of course, be described by his sion. 
 right name ixi the commission; but though there is a mis- Descrip- 
 
 take in the spellin<j of the name, yet if it is idem sonans, the tion ot 
 
 •n . • < / N * 1 • 111 I bankrupt, 
 
 variance will not be material. (5) And it was held no ob- 
 jection to a commission, that the bankrupt w^as described 
 as Robert Martin Jackson, though his real name was 
 only Robert Jackson, the name of Martin having been as- 
 sumed by him. (6) But where there are t-ys:o commissions 
 
 characters of Solicitor, Commis- (2) Ex parte Boivdler, 1 Rose, 
 
 sioner, Banker, and Assignee ; and 48. 
 
 Lord Eldon ordered that he should (3) In re C/iild, Buck. 425. 
 
 never be permitted to take out an- (4) Ex parte Smith, 19 Ves. 475. 
 
 other commission. eVes. 1. et seq. (5} Ex parte Ward, 1 Rose, 314. 
 
 (l) Ex parte Fellows, 2 Mad. Inve Baldwin, 2 Roie, 20. 
 
 141. (C) Ex parte Smith, 2 Rose, 25. 
 
 I 3
 
 118 
 
 OF ISSUING THE COMMISSION. 
 
 [Cb. 5. 
 
 Descrip- 
 tion. 
 
 Variance, 
 
 when 
 
 material. 
 
 How the 
 
 trading 
 should be 
 described. 
 
 issued, one by his Ksovong name (though the very one be 
 was in the habit of using) and the other by bis right one — 
 the latter will be preferred.(l) And where tliere is a doubt 
 lu)w the bankrupt spells his name, and the case is urgent, 
 the Court will make an order that the commission shall 
 issue against him, described with an alias, — thus: "J. 
 Stevenson, otherwise J. Stephenson." (2) The omission 
 to describe the bankrupt as surviving partner^ when the 
 commission is sued out on a joint debt due from him and 
 his deceased partner, does not seem to be important. (3) 
 
 The bankrupt's j)lace of abode should also be correctly 
 described in the commission, — though, if he is well 
 known by the description, a trifling mistake in this respect 
 will not be material; — such as describing his residence to 
 be " of Finsbury Square, in the city of London ^^ instead of 
 ^^ ihe countij of' Middlesex." {^) But a com<mission against 
 J. G. of Copthall Buildings, instead of Copthall Court {5), 
 or against J. N. of A. in the parish oi' Hope, instead of the 
 parish of Tidswell, have been held bad. So where the 
 bankrupt is described asof ifwo places, when in fact he only 
 belonged to one. (6) 
 
 It is usual in practice to describe the bankrupt in the 
 commission, by the particular trade he was known lo follow ; 
 though the terms " dealer and chapman," or any thing 
 tantamount, are alone sufficient. (7) Thus a scrivener has 
 been held to be sufficiently described by the words 
 " dealer (8) and chapman." And the general statement 
 under those words — or that he " got his living by buying 
 and selling," will admit of any particular trading (9), or 
 indeed of any other trading, though different from that spe- 
 cifically mentioned in the commission. (10) But when the 
 
 ( 1 ) Ex parte Schofield, 2 Rose, 
 246.; and see Stevens v. Klizce, 
 3 Camp. 256". 
 
 (2) Slcvenson^s case, 1 9 Ves, 277. 
 
 (3) 111 re Baldwin, 2 Rose, 20. 
 
 (4) Ex parte Smith, 1 G. & J. 
 256. 
 
 (5) In re Gordon, 1 Mont. Dig. 
 78. 
 
 (6) Ex parte Marston, ibid. 
 
 (7) Ex parte Herbert, 2 Rose, 
 248. 2 V. & B, 399. Hale v. 
 Small, 2 B. & B. 28. 
 
 (8) Kemp V. Neville, 5 Moore, 
 23. 
 
 (9) Ex parte Herbert, 2 Rose, 
 248. 
 
 (10) Haley. Small, 2B.&.B, 25.
 
 Sect. 1.] OF ISSUING THE COMMISSION. 119 
 
 general words are altogether omitted, — then, indeed, evi- Amend' 
 
 dence cannot be given of any other trading than what is ^ "^" ' 
 
 specified. ( 1 ) 
 
 A commission, before it is issued, is considered in the When 
 
 nature of an escrow, and a clerical error may be corrected : '^."'"'"'^* 
 ' ^ '' ' sion may 
 
 but the Lord Chancellor will not permit the teste to be be ameml- 
 altered, or the commission resealed, in order to let in a ' 
 subsequent act of bankruptcy, where the petitioning cre- 
 ditor is unable to prove an act of bankruptcy prior to the 
 date of it. (2) And where a commission is permitted to when must 
 be resealed, there must be a new docket, — that is, there docket, 
 must be a new bond given, and the affidavit must be re- 
 sworn. (3) But when tiie commission has once been opened, When 
 it has been laid down hitherto as a strict rule, that it cannot cannot be 
 be amended or resealed, even to coi'rect a mere clerical amended. 
 error; and that the only remedy is to supersede it, and 
 issue another. (4<) There does not now, however, seem to Quasrc 
 
 be any great reason for so inflexible an adherence to this ,1!!"^"* 
 
 . . . . Whether 
 
 rule; — for the principle on which it appears to have this rule 
 
 been founded was, that any alteration of the commission inflexible? 
 would be a fraud upon the revenue laws ; but the commis- 
 sion now, as well as the bond, ajfidavit, and petition, are 
 all exempted from any stamp duty. Another reason has 
 been also assigned for the rule, which is, that by resealing 
 the commission, a party, against whom it had improperly 
 issued, might be defeated of his right of action. (5) But 
 this, reason, it is apprehended, will not apply to a trifling 
 mistake, or mere clerical error, — in respect of which, with- 
 out any other ground, a court of equity would hardly en- 
 courage a legal right of action. In one case, indeed — Relaxed 
 
 where the commission had not only been opened, but had when error 
 
 *' • . arose iroin 
 
 been in prosecution more than two years, the error liaving act of the 
 
 officer. 
 
 (1) Ibid. 3 Moore, 63. Ex parte (4) Ex parte Thompson, 9 Ves. 
 5ma//, aWils. Ch.Rep.S5. 22.5. i^w//<?r's case, 10 Ves. 190. 
 
 (2) Ex parte Cheeseivright, i/ji/rofy's case, ibid. 286. Ex parte 
 1 Rose, 228. 18 Ves. 480. Thwaitcs, 15 Ves. 525. Ex parte 
 
 (3) Ex parte Sutton, 1 Rose,85. Lee, 1 Cox, 394. 
 In re Rulledge, 2 Rose, 369. (5) 10 Ves. 191. 
 
 I 4
 
 jm 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 W/ie}i to 
 be exe- 
 cuted. 
 
 When 
 country 
 commis- 
 sion super- 
 seded at 
 the bank- 
 rupt office. 
 
 arisen from the dci of the officer at the Bankrupt office, in 
 not following the description in the affidavit for tlie docket — 
 the Lord Chancellor ordered the commission to be made 
 conformable to the affidavit (1); such an amendment, how- 
 ever, has been refused, when the error was created b}' the 
 act of the solicitor. (2) 
 
 A commission ought to be executed in a reasonable time 
 after it is issued ; and it is an abuse of it to delay the pro- 
 secution of it, with a view to another arrangement. (3) 
 Accordingly? by a general order of Lord Loughborough (-t), 
 when any London commission is not proceeded in for 
 fourteen days after the tiate of it, or a Country commission 
 in tvoenty-eight days, either of them may be superseded. 
 One day further, however, must elapse before the order 
 for the supersedeas can issue; and the application which 
 shall be first made during that day for a new commission, 
 by any other solicitor, will be preferred to an application 
 from the solicitor who -sued out the first commission. But 
 by a subsequent order, this preference is not to be enforced 
 against the same solicitor, when acting as agent for a dif- 
 ferent person from the one, for whom he acted in suing 
 out the first commission. (5) 
 
 In the construction of the first of these orders, the prac- 
 tice at the Bankrupt office has been, uniformly to super- 
 sede a Country commission, on the 30th day after it 
 issues, upon an application made for that purpose on the 
 2;)th, nnless notice of the adjudication is previously given 
 at the office on the latter day. And even where the ad- 
 judication did not take place until the 28th, and, by the 
 course of the post from the place where the commission 
 was opened, it was impossible that notice of the adjudi- 
 cation could reach London by the 29th, the Lord Chan- 
 cellor refused to supersede a second commission, which 
 
 (1) Ex parte Guthrie, 1 G. & J. 
 245. 
 
 (2) Ex parte Forshaw, 1 G. & 
 J. 368. 
 
 (3) Ex parte Layton, 6 Ves. 434. 
 
 (4) 2Gth June 1793. 
 
 (5) General Order, 5th Nov. 
 1793.
 
 Sect. 1.] OF ISSUING THE COMMISSION. 1^1 
 
 had been taken out by another creditor. (1) For a comniis- When to 
 sion should be executed immedicitelj/, without waiting to the ^ ^f'l 
 
 utmost limit of the time allowed by the general order; and 
 
 where it hapjoens to be against Bankers^ there is a greater v^'"'""*' 
 necessity for prosecuting it without delay. (2) Therefore, against 
 where the petitioning creditor applied to supersede a com- ""^"^''^''^• 
 mission against bankers, and issue another, on the ground 
 that the act of bankruptcy was subsequent to the date of 
 the commission — and the solicitor had been required to 
 state by affidavit why he took out a commission which he 
 could not support — and pending that application another 
 creditor obtained a supersedeas, and also a fresh commis- 
 sion, under the apprehension of immediate extents; — the 
 latter commission was preferred, though the bankruptcy 
 was afterwards declared upon acts found previous to the 
 date of the first commission. (3) 
 
 Proof of an act of bankruptcy, followed up by the ad- What a 
 
 indication, it seems, is a sufficient proceeding within the sufficient 
 r I 1 1 • • 1 . , proceed- 
 
 terms or the order ; and it is not necessary that the adver- ing. 
 
 tisement of the adjudication should have appeared in the Advertise- 
 Gazette within the limited period. For the Gazette being Q^zette 
 only published twice a week, the adjudication may be fre- 
 quently too late to be inserted within that period; — it 
 would be unreasonable, therefore, to iiold, that nothing 
 but advertisement of the adjudication would satisfy the 
 terms of the order. (4) 
 
 The strictness of the general order also, may, under pe- When 
 culiar circumstances, be relaxed, where there is a hond fide ^^V^v^^^t 
 intention to prosecute the commission ; — as in the case of der may 
 the sickness of a commissioner, or a witness. (5) And be relaxed, 
 although a commission has been superseded for non-prose- 
 cution, according to the terms of the order, and a second 
 commission actually issued by another creditor, yet he is 
 
 (1) Ex parte ^("K^erson, 2 Rose, (4) Ex parte Freeman, 1 Rose, 
 190. ; and see post, "Supersedeas." 384. Ex parte Ellis, 7 Ves. 135. 
 
 (2) Ex parte il/6fi>or, 19 Ves. 542. Ex parte Soppii, Buck. 81., but 
 (s) Ex parte Mavor, 19 Ves. see ante, 120. 
 
 542. (5) Ex parte Freonan, 1 Rose, 
 
 384.
 
 122 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 When to 
 be ex- 
 ecuted. 
 
 When 
 time en- 
 larged for 
 adjudica- 
 tion. 
 
 Same pe- 
 titioning 
 creditor 
 cannot sue 
 out a se- 
 cond com- 
 mission 
 without 
 special 
 leave. 
 
 not entitled to the second commission as a matter of abso- 
 lute ri^ht. For where, in a case of this kiticl, there was a 
 hondjide intention of prosecuting the first commission, de- 
 layed only by the refusal of the witness (who could prove 
 the act of bankruptcy) to attend the commissioners, and 
 notice had been given to the solicitor who struck the se- 
 cond docket, that a petition had been presented to compel 
 the attendance of that witness, and that the commission was 
 intended to be prosecuted, — the second commission, under 
 these circumstances, was directed to be superseded, and 
 the first commission to proceed. (1) And in another 
 case, where the commission was supersedable under the 
 above order, and the solicitor who took out a second com- 
 mission, had previous notice that the first was to be pro- 
 ceeded in. Lord Eldon intimated his intention to have made 
 the solicitor pay the costs, if the first solicitor had not in fact 
 (under the apprehension that the first commission could not 
 stand,) himself taken out a fresh one. (2) Where, also, the 
 adjudication was prevented, by the witness to prove the act 
 of bankruptcy secreting himself in conceit with the bank- 
 rupt, the time has been enlarged from time to time, on peti- 
 tion to the Chancellor, with an affidavit of the facts. (3) 
 
 By a general order of Lord Thurlow(4) a petitioning 
 creditor who has sued out one commission, and who has 
 neglected to prosecute it, cannot sue out another without 
 the special leave of the Lord Chancellor. And this will 
 not be granted, when no proceedings were had under a 
 connnission sued out a twelvemonth before. (5) Lord 
 Eldon also has directed, that a second commission should 
 never be sent to him, without a note of what had been done 
 
 (1) Ex parte Freeman, 1 Rose, 
 580. 
 
 (2) Ex parte Sanden, 1 Rose, 85. 
 (.3) In re Hayes, 1 G. & J. 255. 
 (4) 6th Dec. 1788. Thereisno 
 
 printed or written copy of this 
 order ; but it was made upon a 
 petition of Sir Richard Arkwright, 
 in the matter of Gibson and John- 
 son, and was a direction given by 
 
 Lord Thurlow to Mr. Woodcock, 
 the then secretary of bankrupts ; 
 and although the order never was 
 published, yet it has invariably been 
 acted upon at the Bankrupt office. 
 Whitm. B. L. 476. 
 
 (5) Ex parte Masterman, 18 Ves. 
 298. 2 Rose, 442.; and see 1 Rose, 
 353. (note.)
 
 Sect. 2.] OF ISSUING THE COMMISSION. 123 
 
 in the first. (I) For where there is great delay in exe- When to 
 ciiting a commission, there arises necessarily a presump- ^ Y', 
 
 tlpn of fraud (2); and tiiough no other creditor supersede 
 
 the commission for want of prosecution, yet, after a con- 
 siderable lapse of time, the Court will not permit the pe- 
 titioning creditor to proceed (3) upon it. But where the Where de- 
 delay arose from the bankrupt, and not from the petitioning fyo^^'^^hg 
 creditor, a commission was in that case ordered to be opened bankrupt. 
 near four months after it had issued. (4) In such a case, 
 however, the delay must be against the 'mill of the petition- 
 ing creditor; for if the delay be wilful, it is not a sufficient 
 excuse, that it was at the request of the bankrupt, and with 
 the concurrence of the creditors. (5) 
 
 A commission supersedable under the above orders of Who may 
 Lord Loughborough may (6) be superseded by any persons supersede, 
 (except the bankrupt or the petitioning creditor), as a matter 
 of course, by mere application at the Bankrupt office; but 
 the bankrupt (J) or the petitio7iing creditor {8} cannot super- 
 sede without a petition. 
 
 Section IL 
 Of the general Effect of the Commission, 
 
 A commission of bankrupt was formerly treated as an Distinc- 
 
 cxeciition at law in the first instance (9) ; and it is still 1'"" 
 
 ^ . tween 
 
 considered in the nature of an execution, being a process commis- 
 
 for all creditors, lefjal and equitable, against a debtor's es- ^'°"' ^. 
 
 1 • 1 I • .1 • I 1 • I • execution, 
 
 tate and effects, to which he is either entitled m his own 
 
 right, or jointly with that of others. (10) It is, indeed, so far 
 
 like an execution, that it may be issued against one only of 
 
 several partners for i\ joint debt(ll); but it differs from an 
 
 (1) I V. & B. 34. and see Ex parte Tliovison, 1 Ves. 
 
 (2) 1 Rose, 584. 157. 
 
 (3) Exparte P2</es^oH,2P.Wms. (9) Twiss v. Massey, 1 Atk. C7. 
 545. Ex parte Smitk, 1 Rose 322. Ex parte Wilson, ibid. 1 55. 
 
 (4) Harrisons case, 5 V. & B. (10) Ex parte SiocAs, sV. &B. 
 174. 107. 
 
 (5) Ex parte Luke, 1 G.&J.361. f (11) Ex parte Crisp, 1 Atk. 134. 
 
 (6) 26th June 1793. Crispe v. Perritt,Wilies,467, Ex 
 
 (7) Ex parte Gale, 1 G. & J. 43. parte Ackerman, 14 Ves. 604. Ex 
 
 (8) Ex parte Stokes, 7 Ves. 408.; parte Dewdney, 15 Ves. 49d.
 
 124' OF ISSUING THE COMMISSION. [Ch. 5. 
 
 Effect, S)-c. execution in this respect — tfiat wlillst tlie latter only passes 
 ~~ what the sheriff' actually seizes, a commission, followed by 
 
 an assignment, vests in the assignees all the rights and pos- 
 sibilities of the bankrupt, which he possessed at the time of 
 the act of bankruptcy. ( 1 ) The property also taken under a 
 ■ . commission is not disposed of, like that seized under an ex- 
 
 ecution, for the benefit of the individual creditor suing it 
 out; but falls immediately under the administration of the 
 Lord Chancellor, for the purpose of ecjuitable distribution 
 amongst (2) all the creditors. 
 
 Does not A commission, before it is opened, it has been already 
 
 abate suits observed, is considered as a species of £'5cro:u (3): and after 
 pending ; . . . ' . . '^ . 
 
 it is opened, it does not operate in abatement of any pend- 
 ing action or suit, brought either by or against the bank- 
 rupt; therefore if he has commenced an action without 
 having any excuse for it, the commission, though followed 
 up by adjudication and subsequent proceedings, will not 
 nor revoke protect him against the consequences of such action. For 
 
 a submis- ^^^ same reason, the commission does not operate as a re- 
 sion to ar- . ... ... 
 
 bitration; vocation of a submission by the bankrupt to arbitration, 
 
 notwithstanding the award was not made till after the act of 
 
 nor decree bankruptcy, on which the commission is founded. (4) A 
 
 or a re- decree, also, of the Court of Chancery, for a receiver of 
 ceiver. . -' . . 
 
 the bankrupt's estate, is not superseded by a commission; 
 
 for the appointment of a receiver is a discretionary power, 
 
 which is exercised by the Court merely provisionally, and 
 
 does not affect the rights of parties. (5) 
 
 Does not ''^ commission does not work a forfeiture under a general 
 
 workafor- clause in a lease, or a will, against alienation; for Bank- 
 feitiire in a ^i- • ^i .- j, j 
 
 lease &c • ^''■M"''-^'}'' being an assignment by operation oj law, is con- 
 sidered not an alienation within the meaning of such a 
 restraint, which is confined to direct and voluntary alien- 
 nor a com- ation by the act of the parti). (6) Neither does a commis- 
 
 flete revo- gjgj-^ operate as a complete revocation of a devise of real 
 cation of a 
 
 devise. ( l) Ex parte Brown, 2 Ves. 68. ,■ (5) Skip v. Harwood, 3 Atk. 564. 
 
 and see Lee v. Lopes, 1 5 East, 250. (6) Doe v. Bevan, 5 M. & S. 553. 
 
 (2) Ex parte Elton, 3 Ves. 239. Willdnson v. Witldnson, G.Cooper's 
 
 (3) Fisher's case, 10 Ves. 190. Cases, 259. ; and see post, " Assign- 
 
 (4) Andrews v. Palmer, 4 B. & nient." 
 A. 250.
 
 Sect. 2.] OF ISSUING THE COMIMISSION. 125 
 
 estate, for the law takes tlie property out of the bankrupt Effect, Sj-c. 
 
 only for the purpose of paying his creditors ; and as soon 
 
 as that is done, the assignees under the commission are 
 
 then mere trustees for the bankrupt, and can be called 
 
 upon to convey to him. (1) 
 
 A comniision renders invalid and nugatory (2) all pay- When 
 
 ments and contracts of the bankrupt, which were not made P'^vments, 
 
 ' ' _ &c. invah- 
 
 by him more than two calendar months before the issuing of dated j 
 
 the commission, except {5) pai/meiifs to creditors ot^ the 
 
 bankrupt, really and bo72d fide made before the date and 
 
 issuing of the commissioji, and before notice of any prior act 
 
 of bankruptcy. And a commission, though superseded (4'), 
 
 yet if followed up by a second commission within two 
 
 months afrer it is superseded, produces the same effect. 
 
 The mere issuing of a commission, however, without of no effect 
 any thing further done under it, does not affect the rights j^^ jg„^[ 
 or projierty of the person who is the subject of it, or of any Oj,cnition. 
 person who may be connected v/ith him. Therefore a prior 
 commission, which has never been acted upon, (though 
 it has not been superseded,) will not invalidate a second 
 commission, v,hich has been regularly proceeded with ; the 
 first being considered as never in legal operation. (5) 
 
 If the person against whom a commission is issued dies When it 
 
 Z)e/o;'f adjudication, the commission then abates and becomes abates by 
 ,,,.,., ,. , . . death ot 
 
 absolutely void ; notvvitnstancnng the commissioners may party; 
 
 have so far dealt with it as to have received proof of the pe- 
 titioning creditor's debt, and the trading; for the party must 
 be declared a bankrupt before his death, to authorize any 
 furtiier proceedings. (6) But if Ije dies after adjudication, 
 in that case the connnissioners may proceed in the commis- 
 sion as if he were living (7); and a commission is declared not by a 
 
 not to abate by reason of a demise of the crown. (8) cmise o 
 
 •J \ ' the crown. 
 
 (1) C/iarmanv.C/iannan, l^Yes. 176. 2 Moore, 71. Ex parte ^z</- 
 5S0. ler, 1 Rose, 136. 
 
 (2) Section 81.; and see post, (6) Ex parte J?ffl/e, 2 V. & B.29. 
 "Relation." (7) Section 26. Beaslcy \ . Beas- 
 
 (.■5) Section 82. ley, 1 Atk. 97. Ex parte Deivdney, 
 
 (4) Section 81. 15 Ves. 494. Doe v. Clark, 5B.& 
 
 (5) Warner V. Barber, 8 Taunt. A. 458. 
 
 (8) Section 26.
 
 126 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5. 
 
 Section III. 
 
 Strictly 
 void. 
 
 and super- 
 sedabie. 
 
 Permitted 
 to stand in 
 case of 
 fraud, 
 laches, or 
 acquies- 
 cence of 
 creditors 
 under the 
 first. 
 
 Of a second Commission. 
 
 A second Commission issued against a Bankrupt before 
 he has got his certificate under the first (provided the first 
 has been put into legal operation) is, strictly speaking, 
 void at law; for an uncertificated bankrupt is incapable of 
 trading, or contracting effectiiallij, for his own benefit, — all 
 the property he acquires being affected by the assignment, 
 and vesting in his assignees. (1) Two commissions, there- 
 fore, cannot subsist together for the same purpose ; and in 
 general the second will be superseded. But the Lord 
 Chancellor will always exercise a discretion on the subject, 
 and support that commission which is most convenient, 
 by superseding the other. (2) And we have just seen that a 
 commission, which has not been put into any legal oper- 
 ation, will not invalidate a second commission ; for no 
 property actually passes under a commission before assign- 
 ment. (3) 
 
 Under some special circumstances also, as where there 
 has been fraud, or laches^ in the creditors under the first 
 commission, the Lord Chancellor has refused to supersede 
 a second commission, notwithstanding the first has been 
 prosecuted to a certain extent; as where it appeared that 
 the creditors under the first had signed the certificate 
 under the second, and acquiesced under it for a consider- 
 able time. (1) And so where fifteen years had elapsed 
 since the first commission, during all which time the bank- 
 rupt (who was the son-in-law of the petitioning creditor 
 
 (1) Ex parte Proudfoot, 1 Atk. 
 251. Martin v. O'Hara, Cowp. 
 823. Ex parte 5ro2i^«, 2 Ves. 67. 
 4 Bro. 210. Ex parte Bold, C. B. 
 L. 12. Ex parte Leicester, 6 Ves. 
 426. Everett V Baclchouse, loYes. 
 54. Ex parte Martin, 1 5 Ves. 114. 
 Butt V. Biike, 4 Pri, 240, 
 
 (2) Ex parte Lai/ton, 6 Ves. 434. 
 Ex parte Hardivicke, ibid. Ex 
 parte Lees, 16 Ves. 472., and see 
 ante, 122., and post, " Super- 
 sedeas." 
 
 (.3) Ante, 125. 
 
 (4) Ex parte Proudfoot, supra; 
 and see ante, 122. et seq.
 
 Sect. 3.] OF ISSUING THE COMMISSION. 127 
 
 under the first conimission) had been pei*mitted to carry 
 on trade in another place. (1) And, where the creditors 
 under the first commission had, by a contract of com- 
 position, placed themselves in such a situation as to prevent 
 the legal operation of the commission, Lord Eldon said, 
 he would not suffer them to defeat the fair claim of cre- 
 ditors under the second commission. (2) 
 
 Willi respect to a /f///r^ commission, — the doctrine that As to a 
 has been held, tiiat such a commission is sustainable against mission. 
 a bankrupt, although he has not paid 155". in the pound 
 under the second (3), it seems, can no longer be maintained 
 under the provisions of the new act; for by the I27th 
 section, all his future estate and effects are in such a case 
 declared to be vested in the assignees under the second com,' 
 mission ,- and, therefore, there would be now no property 
 left, upon which a third commission could possibly operate. 
 No third commission, however, which subsisted before the 
 1st September 1825, will be affected by this provision, as 
 all proceedings and rights under such commissions are 
 protected under the 135lh section of the new act. 
 
 Where a sequestratioii in Scotland is awarded against a When 
 
 party domiciled there, and a commission of bankrupt is qugstra- 
 
 issued against the same party, by reason of his being domi- tion has a 
 
 ciled also in England, the sequestration has the preference, P',^ e''e»ce 
 
 -- if the petition for the sequestration was before the issuing English 
 
 of the commission — notwithstanding the act of bankruptcy ^°'"""^" 
 
 . . sion. 
 
 in England was committed before the petition for the 
 
 sequestration, and the latter was not finally awarded till 
 
 after the issuing of the commission. (4) 
 
 (0 Ex parte Lees, 16 Ves. 472. (5) Ex parte Baker, 1 Rose, 452. 
 
 (2) Ex parte Batten, 1 Rose, Ex pinte Hodgkinson, 2 Rose, 172. 
 
 134.; and see Ex parte Crew, G. Coop. 99. 
 
 16 Ves. 2.36. Ex parte B/iodes, (4) Ex parte Geddes, 1 G. & J. 
 
 15 Ves. 543. 414.
 
 128 
 
 OF ISSUING THE COMMISSION. 
 
 [Ch. 5, 
 
 Section IV. 
 
 Former 
 practice 
 to com- 
 missions 
 against 
 partners 
 
 Of a joint Commission. ( 1 ) 
 
 It was formerly the practice, where there were several 
 ^^ partners, to take out separate commissions against each,^ 
 as well as a joint commission against all; for it was holden 
 that a joint creditor could not avail himself of any dis- 
 tribution of the property of one partner under a separate 
 commission. (2) I'his practice, however, has been long 
 exploded; as it created great confusion and expense with 
 regard to the effects of the bankrupt, and was, indeed, in. 
 itself unreasonable and inconsistent — a second commission 
 against the same individual, pending the working of the 
 first, being, as we have seen, void at law. (3) It has now, 
 therefore, been some time settled, that a joint creditor can 
 not only prove his debt under a separate commission, but 
 may albo himself sue out a separate commission againsit 
 any one of several partners. (4) Bqt he could not, until 
 lately, have sued out a commission against t'iSjo of three 
 partners (5), any more than an action at law on a bond 
 can be sustained against two out of three joint and several 
 obHgors — wliich must either be brought against all jointly, 
 or each one separately. 
 
 Under a joint commission, too, it was necessary that 
 each of the partners included in it should be found bank- 
 rupt; for a commission, void as to one partner, was not sus- 
 tainable against another. Thus, where one partner was 
 dead at the time a joint commission vvas taken out, it was 
 held to abate, and be absolutely void (6); though, as we 
 
 (1) And see post, " Partners," (5) Allan v. Hartlei/, C. B, L. 7. 
 
 (2) 1 Atk. 138. Allen v. Downes, Willes, 41A. note 
 (5) Ante, 126. Ex parte 5az;t?icr, (b). Ex parte Layton, 6Ves.434.' 
 
 1 Atk. 98. Ex parte Cooti^ 2 P. Ex parte Henderson, 4 Vcs. 163.; 
 
 Wnis. 500. and see Streatjield v. Halliday, sT. 
 
 (4) 1 C. B. L. 9. Cnspe v. Fcr- R. 453. 
 
 r'M, Willes, 467. Ex parte JJcwd- (6) Bcuslcy v. Bcasley, 1 Atk. 97. 
 
 ney, 15 Ves. 499. Ex parte Martin, 15 Ves. 115. ..•
 
 Sect. 4.] OF THE COMMISSION. jS^: 
 
 have seen, this is not the case where he does not die, till Joint Com- 
 aker the acyudication. mission. 
 To remedy this latter inconvenience, the 16th section of Joint cre- 
 
 the new statute (which continues the provision of the '^''^°" ™^y 
 
 ^ \ 1 1 1 • • T ^"^ out 
 3 ijteo. 4. c. 81. s. 8.,) declares, that a jonit creditor may commis- 
 
 sue out a commission against one or more partners of a *'°" 
 
 firm, though it does not include all the jiartners. And in one or 
 
 any commission against two or more partners, the Lord "^'"^ 
 
 Chancellor may supersede it as to one or more, without \\ 
 
 affecting its validity as to any partner, against whom it is super- 
 
 not ordered to be superseded. But even now, it is annre- ^^''^^ ^^ 
 
 1 J I I • • . . . . , * ^ to one, 
 Uendecl, wnere a jomt commission is void as to one part- and stand 
 
 ner, it cannot operate against the other at law, — unless it '"^sa'nstthe 
 
 has been previously superseded by the Lord Chancellor, as 
 
 to the partner against whom it was void, pursuant to the 
 
 authority given him by the above section. (1) 
 
 A joint commission has been sustained, on a debt con- 
 tracted many years after a nominal dissolution of a partner- 
 ship, where the sale of goods, which were the joint property 
 of the partners, was continued after such dissolution. (2) 
 
 Although a joint commission is, in strictness of law, a When 
 
 nullity as to those partners a']jainst whom separate commis- J°.'"^ ^^^' 
 
 mission. 
 sions have been previously issued, yet, if it can be made to preferred 
 
 appear, that the estate of the bankrupts will be benefited *° P"'''" 
 1 • 1 • • • • 1 T 1 /->ii 11 separate 
 
 by prosecuting tlie joint commission, the Lord Chancellor commis- 
 
 has long exercised the discretion of superseding, or suspend- sions. 
 ing, the prior separate commissions, and ordering the joint 
 commission alone to be proceeded with; under which latter 
 commission the assignees can, at law, recover both the joint 
 and separate estates, and the same distribution will be then 
 made, as if both the joint and separate commissions were per- 
 mitted to stand. (3) But this discretion will be only exercised, 
 
 (l)SeeHoggv. Bridges, 2Moore, L, 9. 1 Cox, 597. Ex parte ilfar- 
 
 122. ' tin, 1 5 Yes. 115. E\ parte Smith, 
 
 (2) Backhouse v. Tarleton, 2 Star. 1 G. & J. 256. Ex parte Bonbonus, 
 Ev. 143, cit. ySwanst. 571.; and 8 Ves. 540. Ex parte Gardner, 
 see ante, 31. et seq. 1 Ves. & B. 74. 
 
 (3) Ex parte tiardcaatle, I C. B.
 
 130 
 
 OF THE COMMISSION. 
 
 [Ch.5. 
 
 Joini Com' 
 
 Prior com- 
 mission in 
 Ireland. 
 
 Petition- 
 ing credi- 
 tor under 
 separate 
 commis- 
 sion, al- 
 lowed the 
 costs of 
 super- 
 seding; 
 
 and re- 
 stored to 
 his right 
 of elec- 
 tion. 
 
 When 
 separate 
 commis- 
 sion im- 
 pounded. 
 
 where it is clear that more ample justice can be obtained 
 under the joint commission. (1) It is not, however, a suffi- 
 cient objection to superseding the separate commission, that 
 a separate creditor to a great amount will by that means be 
 divested of his right of voting in the choice of assignees. (2) 
 Neither is a prior separate commission, issued in Ireland 
 against one of two partners, a ground for superseding a 
 joint commission issued against them in this country. (3) 
 
 When a prior separate commission is superseded to give 
 effect to a subsequent joint one — as this proceeding is not a 
 matter of strict right, but for the convenience and general 
 advantage of all the creditors — it is deemed but just, that 
 the petitioning creditor under the separate commission 
 should be indemnified for the expenses of this proceeding. 
 Therefore, unless he has been acting 7nald Jide, he receives 
 all the costs of the superseding out of the joint estate. (4) 
 And when a separate commission is thus superseded, every 
 thing done under it falls with it. Thus where a joint and 
 separate creditor sues out a separate commission, and 
 proves his debt under it, he is, upon the supersedeas^ 
 restored to his right of election to prove against the joint 
 estate; and he has also a right to elect, out of which estate 
 he will be paid the costs of the supersedeas. (5) When, 
 however, a separate commission is taken out after a joint 
 one, and after the petitioning creditor had previous notice 
 of the joint commission, in this case, the separate commis- 
 sion will be superseded at the expense of the petitioning 
 creditor. (6) 
 
 But though it lies in the discretion of the Lord Chan- 
 cellor to supersede a prior separate commission, and this 
 in any stage of the proceedings, and whether the bankrupt 
 has got his certificate under it or not (7); yet where sales 
 
 (l) Ex parte Rawson, 1 V. &-B 
 160 
 
 (51 Ihid. 
 
 - ju. (6) Ex parte Mason, 1 Rose,425. 
 
 (2) ExpartePacAe/o>-, 2Rose,26. (7) Ex parte Cntlen, Buck. 68. 
 
 (3) Ex parte Cridland, 2 Rose, Ex parte Poole, 2 Cox, 227. Ex 
 164. parte Gi//a?K, Ibid. 195. 
 
 (4) Ibid. Ex parte Brown, 
 1 Rose, 452. 1 V. & B. GO.
 
 Sect. 4.] OF THE COMMISSION. 131 
 
 of the eflPects have taken place, or the bankrupt's certificate Joint Coin^ 
 has been brouglit into the Bankrupt office for allowance, ^ ""^'""' 
 the Lord Chancellor will then sometimes, in preference to 
 superseding it, direct it to be impounded in the Bankrupt 
 office. (1) By this mode of proceeding, whilst full effect 
 is given to the working of the subsequent joint commission, 
 the sales and certificate under the separate one are, at 
 the same time, prevented from being rendered invalid. 
 And generally, where superseding the separate com- 
 mission might prejudice transactions that have taken place 
 under it, the Lord Chancelloi- will, if the convenience of 
 administering the partnership fund makes it better that the 
 joint commission should stand, so dispose of the first com- 
 mission (without superseding it), as to prevent its being 
 an impediment to the prosecution, or validity, of the subse- 
 quent joint commission, (2) Even a court of law has exer- 
 cised a species of equitable jurisdiction in this respect; as 
 where the assignees under a prior separate commission 
 obtained a verdict against a defendant — upon its appearing 
 that there was a subsequent joint commission — it was 
 ordered that the money should be paid into court, until a 
 petition to supersede the separate commission then pend- 
 ing had been decided. (3) 
 
 Under some circumstances the joint commission will be When the 
 
 superseded, and the separate one preferred : as whei'e a s^P^''^t6 
 ,^ , . ' ^ , commis- 
 
 joint commission was not taken out for^t;^ months afie)- a sionwillbe 
 
 separate one had issued, and there did not appear to be pi'^^'^rred. 
 
 any joint eff^ects. (4') And a separate commission will not Laches of 
 
 be superseded upon the petition of joint creditors, if they JP'"*^ "^' 
 
 suffer a considerable time to elapse, without obtaining an 
 
 order to prove, for the purpose of assenting to, or dissenting 
 
 from, the certificate, — and more especially, if the certificate 
 
 under the separate commission is actually lying for confirm- 
 
 (l) Ex parte i2oz(;/aH(?5on, ] Rose, (3) Hodgkinsonw. Tr avers, 1 B. 
 
 416. Ex parte Tobin, 1 V. & B. & C. 257. 
 
 308. 1 Rose, 431. note (a). Ex (4) Ex parte /?02i'/rt?2^soH, 1 Rose, 
 
 parte i?a7<;soK, I V. &B. 160. 89. Ex parte Hamper, 17 Ves. 
 
 fr,\ f,, ^_ TI/T , n ^-- .i^- 
 
 yyan^i naivion, i v.ecii. ibu. »y. 
 
 (2) Ex parte Mason, 1 Rose, 433, 403. 
 Ex parte Wilson, Buck. 52.
 
 m 
 
 OF THE COMMISSION. 
 
 [Ch. 5. 
 
 Joint Com- 
 "mssion. 
 
 by not sur- 
 rendering. 
 
 ation, and no misconduct is imputed to the bankrupt. (1) 
 Where, also, a separate commission was sued out against 
 one of two partners, who was adjudged a bankrupt, and then 
 the other partner died before assignment, and afterwards a 
 second commission was taken out against the bankrupt 
 partner, describing him as surviving partner, — the first 
 commission was supported in preference to the second, 
 the adjudication being considered as the act which severed 
 the partnership. (2) 
 Where A separate commission will not be superseded to give 
 
 the bank- ^^qq^ ^q a. subsequent joint one, where the bankrupt has 
 committed committed a felony, by not surrendering to the separate 
 a felony commission (3) ; unless, indeed, the omission to surrender 
 proceeded merely from mistaken advice, and not from any 
 fraudulent intent. But under such last mentioned circum- 
 stances — and where it appeared also that the bankrupt had 
 surrendered, and passed his examination under the joint 
 commission — Lord Eldon superseded the separate com- 
 mission upon the petition of the bankrupt, even after a 
 prosecution had been instituted against him. (4) 
 
 Under a joint commission, it is the practice of the Court 
 to make an order, (which may be obtained now without a 
 petition,) that the assignees shall keep distinct accounts of 
 the several estates, and that the separate creditors may 
 come in and prove their debts. (5) And if any proceed- 
 ings have been had under a separate commission v/hich 
 has been superseded, they are generally ordered to form 
 part of the proceedings under the joint commission, and 
 the proofs taken under the former commission are directed 
 to be received as proofs under the other. (6) 
 
 By section 17. of the new act, where a commission is 
 issued against two or more members of a firm, and after- 
 sionissued, wards a commission is sued out against any otlier or the 
 "^'®*'?' partners, the last commission must be directed to the same 
 
 (1) Ex parte Cutten, Buck, C8. (5) 1 Atk. 138. 
 
 (2) Ex parte Smith, 5 Ves. 295. (6) Ex parte Tobin, 1 V. & B. 
 (.'5)Exparte^o6ar^s,2Rose,578. 508. Ex parte Upham, 17 Ves. 
 li) Ex parte Lavender, IS Ves. 212. 
 
 19. 1 Rose, 55. 
 
 Usual 
 order for 
 distinct 
 accounts, 
 &c. 
 
 Where 
 separate
 
 Sect. 5.] OF THE COMMISSION. 133 
 
 commissioners as those in the first commission ; and im- Joint Com- 
 
 mediately after the adjudication under the second com- ^ '""""' 
 
 mission, the commissioners are directed to convey and joint com- 
 
 assure all the bankrupt's estate to the assignees chosen "^'^P'"" 
 . ' , ^ against 
 
 imder the first commission ; and after such conveyance, all others of 
 separate proceedings under the second commission are ^^^^' 
 directed to be stayed ; and the second commission, without 
 affecting the validity of the first, is to be annexed to and 
 form part of the same. The Lord Chancellor has, how- 
 ever, the power to direct the second commission, if he 
 thinks fit, to be issued to any other commissioners than 
 those named in the first; and also to order such second 
 commission to proceed either separately, or in conjunction, 
 with the first commission. 
 
 Section V. 
 Of renewed and auxiliary Commissions. 
 
 If more than two of the commissioners should die — by When 
 
 which means there would not be a sufficient number to f.o'"™^- 
 • r I • • 11111 • • • 1 sio" ™ay 
 
 act, — or it the commission shoukl be lost, — it may in either be re- 
 
 of these cases be renewed; on which occasion only half the "^^^d> 
 usual fees on granting commissions are payable. ( 1 ) Where, when it 
 however, the creditors have been paid the full amount of <^^""o'- 
 their debts, there cannot be a renewed commission. In 
 such a case, therefore, where all the commissioners were 
 dead, the representatives of the surviving assignee were 
 ordered to execute a power of attorney to a receiver, ap- 
 pointed under a decree of the Court of Chancery in a 
 cause, by virtue of which he was deputed to collect and 
 get in the estate. (2) 
 
 Auxiliari/ commissions for the proof of debts under 20/. Auxiliary 
 
 were, before the present statute, issued by the Lord Chan- commis-, 
 
 ' ^ ' 111 sions. 
 
 cellor ; but there was no power granted under such com- 
 
 (1) Section 26. of the new act, case, 1 Vern. 208. Ex parte Hal' 
 from 5 G. 2. c. 50, s. 44. Ex parte Mat/, 7 Vm. 77. 
 Jtobbef, Buck. 152. Backtvelfi (2) Twogood v. Hank&y, Buck. 
 
 6S. 
 
 K 3
 
 134. 
 
 OF THE COMMISSION. 
 
 [Ch. 5. 
 
 missions to examine the bankrupt. (1 ) But now by sect. 20. 
 of the new act, the Lord Chancellor is empowered to issue 
 auxiliary commissions, both for proof of debts under 20Z. 
 and for the examination of witnesses upon oath, or for 
 either of these purposes. And the commissioners in every 
 commission of this description are clothed with the same 
 powers to compel the attendance of, and to examine wit- 
 nesses, &c. as are possessed by the commissioners in the 
 oriirinal commission. The examination of witnesses under 
 such commissions is dii'ected to be in writing, and to be 
 annexed to and form part of the examinations under the 
 original commission. 
 
 Assign- 
 ment of 
 the bond 
 to the 
 Chan- 
 cellor. 
 
 When it 
 will be im- 
 mediately 
 assigned. 
 
 When 
 after a 
 
 Section VI. 
 'Remedy "shere Coinmission is maliciously sued out. 
 
 By the 13th section (2) of the new statute, if the com- 
 mission is issued fraudulently or maliciously, and without 
 foundation, the Lord Chancellor may, upon the petition of 
 the person against whom it was taken out, order satisfaction 
 to be made to him for the damages sustained ; and for the 
 better recovery thereof may assign the petitioning cre- 
 ditor's bond (3) to him, upon which he may afterwards sue 
 in his own name. 
 
 Where the case is attended with any flagrant circum- 
 stances, the bond will be immediately assigned (4) (without 
 further inquiry) to ^^ the j)crson against 'whom the commission 
 xms taken outV (5) But when the Bankruptcy is a doubtful 
 
 (1) Ek parte Perry, 1 Rose, 12. 
 Ex parte Scott, Ibid. Ex parte 
 Upham, 17 Ves.212. 
 
 (2) From 5G. 2. c..30. s. 23. 
 (s) The provision for a bond to 
 
 the Chancellor, and the assignment 
 of it to the petitioning creditor, 
 was first introduced by the 5 Ann. 
 c. 22., which statute expired very 
 soon after its enactment. 
 
 (4) Ex parte Gaylor, 1 Atk. 144. 
 
 (5) These words, it seems, were , 
 
 inserted in the act, instead of the 
 words " party grieved," (which was 
 the expression in the 5 G. 2. c. 30.) 
 in order to remove certain doubts, 
 raised by the case of Smithey v. 
 Edmonson, 3 East, 22. as to the 
 right of any other person, than 
 the one against whom the com- 
 mission was issued, to call for an 
 assignment of the bond. (See 
 Eden, B. L. 64. note (a)). But it 
 has been determined since that
 
 Sect. 6.] OF THE COMMISSION. 135 
 
 case, it is in the discretion of the Lord Chancellor, either Remedy, 
 
 to direct an inquiry before the Master of the damages sus- _i 
 
 tained by the bankrupt, or a quantum damnificatus upon an previous 
 issue at law ; and after the damages are settled, the Chan- '"^"''"y* 
 cellor may then, for the better recovery of them, order the 
 bond to be assigned. (1) Sometimes, when the case is one 
 of strong suspicion only, the Lord Chancellor will not 
 assign the bond, though he will supersede the commission 
 with costs, without prejudice to an action ; for the power Assign- 
 to assign the bond is confined to the case of malice (2) ; of "?^".'^ '^°"" 
 
 o . . . . elusive 
 
 which, indeed, the assignment itself is conclusive evi- proof of 
 
 dence (3), and neither more nor less than the penalty can ^^"'^e. 
 be recovered. When, however, the conduct of the petition- When 
 ing creditor, though highly improper, is not such as to justify ^'^"'^ ^lU 
 an assignment of the bond, the Lord Chancellor will some- to stand as 
 times order the bond to stand as a security for the damages, ^ secunty. 
 to be ascertained in an issue ; but in one case of this kind, 
 where the petitioning creditor became bankrupt himself. 
 Lord Eldon named a specific sum, to obviate the objection 
 that the damages so ascertained would be a debt liquidated 
 after the bankruptcy. (4-) 
 
 The assignment of the bond beinfj conclusive evidence Actions on 
 
 111 
 
 Q^ fraud, or malice, it is not necessary, in an action on the V^ ^ " d 
 b&nd, to aver in the .declaration, that the commission was not be 
 fraudulently or maliciously sued out. (5) And where the ''iverred. 
 defendant in such an action pleaded, that the Lord Chan- ^ad'^*^^'^^ 
 cellor had previously ordered a certain sum to be refunded 
 by the defendant, and the costs of the plaintiff to be also 
 paid by him, and then averred payment of such sum, and 
 the costs, before the suing out of the plaintiffs writ, in 
 satisfaction of the damages sustained by the bankrupt's 
 estate; and that neither the plaintiff, nor the bankrupt's 
 estate had sustained any other damage idtrd the sums so 
 
 case, that a creditor aggrieved by (2) Ex parte Lane, 11 Ves. 415. 
 
 the issuing of a fraudulent com- (3) Ex parte Gaylor, supra, 
 
 mission, was not entitled to an (4) Ex parteiFwicH.?, MVes.fiOO. 
 
 assignment of the bond. (Ex parte (5) Smith v. Broomhead, T T. R. 
 
 i?a?H/brrf, 2 Madd.l.) 300. Holmes v. WaUuvnght, 
 
 (1) Ibid. 1 S\vanst.,2.5. 
 
 K i
 
 m 
 
 OF THE COMMISSION. 
 
 [Ch. 5. 
 
 Remedy, 
 
 Bond not 
 within tiie 
 8&9W.S. 
 
 Party not 
 deprived 
 of his 
 action on 
 the case ; 
 
 but that is 
 a waiver of 
 the action 
 on the 
 bond. 
 
 paid to the plaintiff; — it was held, that this plea was no 
 answer to the action ; for the order of the Lord Chan- 
 cellor assigning the bond implies, that the whole penalty of 
 the bond was assigned to the plaintiff, by way of satisfaction 
 in damages for the injury sustained. (I) It is competent, 
 however, to the Lord Chancellor under these circumstances 
 to review his former order, and to direct either the whole, 
 or any part, of the penalty to be applied accordingly. The 
 bond is not within the statute 8 & 9 W. 3. c. 11. s. 8., by 
 which a jury is to assess the damages ; for the damages in 
 this case are to be ascertained by the Lord Chancellor, 
 though he may assist his conscience, either by directing ajj, 
 inquiry before a Master, or an issue at law. (2) >^'+ 
 
 But notwithstanding the above provision in the statute 
 for the assignment of the bond, the party, against wliom 
 a commission is maliciously sued out, is not deprived of 
 his common law remedy by an action on the case against 
 the petitioning creditor; and this mode of proceeding will 
 indeed sometimes afford more satisfactory redress to the 
 injured party, than an action on the bond, — inasmuch as a 
 jury are not limited to the amount of the penalty of the 
 bond, but may give any damages which they may think the 
 plaintiff is justly entitled to. (3) An action of this de- 
 scription, however, is a waiver of a right of action on the 
 bond. (4) In such an action the solicitor should not be 
 joined as a defendant ; for in a case of this description, 
 though the plaintiff gave in evidence, that the messenger 
 had taken possession of his property by the orders of the 
 solicitor, it was held, nevertheless, by Macdonald C. B., 
 that there was no satisfactory ground of action against the 
 latter, who was professionally bound to act as he had 
 done. (5) 
 
 (^1) Smitket/v. Edmonson, 3 East, 91. Ex parte Fletcher, 1 Rose, 
 
 22. 
 
 (2) Ibid. 
 
 (3) Brown v. Chapman, 3 Burr. 
 1418. Chapman v. Picker sgill. 
 sWils. 145. £o«/jam's case, 8 Rep. 
 121. Wydown\ case, 14Ves. 90, 
 
 454. 
 
 (4) Holmes V. Wainwrighf, 
 I Swanst. 20. 
 
 (5) Smith V. Gainsfurd, 1 Rose, 
 148. n.
 
 Sect. 6.] OF THE COMMISSION. 137 
 
 Whenever the circumstances of the case justify the Remedy, 
 interference of the Lord Chancellor, he will, whether _____ 
 he directs an assignment of the bond or not, order the As to de- 
 commission and the proceedings to be delivered up on ^°*"^ j 
 oath to the Secretary of Bankrupts, for the purpose of being ings. 
 produced at the trial of any action or indictment, that may 
 be brought against the petitioning creditor, or other party 
 implicated in suing out the commission ; and will per- 
 mit the bankrupt, or his solicitor, to take such copies of 
 them as they shall be advised. (1) But a judge, it seems, A judge 
 has no authority to make an order for the bankrupt to in- ^j^^ ?° ^^' 
 spect and take copies of the proceedings, notwithstanding order 
 they remain in the hands of the attorney who sues out the '^"P*^^- 
 commission. (2) The allegation in any such action that Allegation 
 the commission was duly superseded, can only be sustained ^^/"^^'^' 
 by the production of the writ of siipersedeas ; for the Lord 
 Chancellor's order directing a supersedeas to issue, is im- 
 perfect evidence that the isorit was actually issued. (3) It is What a 
 a fatal variance, also, to allege that the defendant sued out ^^^ 
 
 variance. 
 
 the commission out of the High Court of Chancery ; for the 
 commission does not issue out of the Court of Chancery, 
 though signed by the Lord Chancellor, — but under the 
 Great Seal of Great Britain, by virtue of the act of par- 
 liament giving special jurisdiction to the Lord Chancellor 
 in matters of Bankruptcy. (4) 
 
 If it appear, that persons have conspired together in the Conspira- 
 
 issuinr; of a fraudulent commission. Lord Eldon has de- ^'^ }^ 'f^"® 
 o ^ ^ a trauda- 
 
 clared, that in such a case he would direct the necessary lent corn- 
 documents to be laid before the Attorney-general, with a m's^sion. 
 view to the institution of criminal proceedings against the 
 parties. (5) But the offence may also be prosecuted either 
 by indictment, or information, without recourse to the 
 Attorney-general. (6) 
 
 (1) Ex parte Warren, 1 Rose, (4) Ibid. 
 
 276. 19Ves. 162. (5) Ex parte ^7»er?/, Buck. 422. 
 
 (2) Ibid. , • (6) Ex parte Caivthorn, 19Ves. 
 
 (3) Poyw^onv. For«/fir, 3. Cam p. 260. 
 58,
 
 138 
 
 CHAP. VI. 
 
 OF THE MEETING TO OPEN THE COMMISSION. 
 
 Prelimi- 
 nary pro- 
 ceedings 
 to the ad- 
 judication. 
 
 Petition- 
 ing cre- 
 ditor must 
 attend in 
 person. 
 
 As soon as the commission is sealed, three of the Com- 
 missioners ought to be summoned by one of the messengers 
 in Bankruptcy to attend a private meeting, for the purpose 
 of opening the commission. After it is opened^ the com- 
 missioners, before they can act under it, must quahfy them- 
 selves by taking the oath directed by the statute ( 1 ), v/hich 
 they are required to administer to one another ; ■ — and a 
 memorial of which must be signed by them, and entered 
 among the proceedings under the commission. They then 
 proceed to receive proof of the petitioning creditor's debt, 
 the trading, and the act of bankruptcy (2) ; each of which 
 ought to be made out to their satisfaction, previous to their 
 declaring the party bankrupt. 
 
 The petitioning creditor — or if there is more than one, 
 then all of them — must attend in person (3) before the 
 commissioners to prove the debt or debts, upon which 
 the commission has issued. And before the commis- 
 sioners declare the party bankrupt, they are required 
 to enter on their proceedings a deposition of the petition- 
 ing creditor, stating the nature and amount of the con- 
 sideration, and the time of accruing of the debt. This, 
 order must be strictly adhered to, and the commissioners 
 are not to depart from it (even in cases where it is im- 
 possible for the creditor to attend) without the special 
 order of the Lord Chancellor, — which will only be obtained 
 in a case of imperative necessity, and will not be made 
 
 (1) Section 21. 
 
 (2) See Vol. II. 
 
 (5) General Order of Lord 
 Loughborough, 2(»th Nov. 1798. 
 See also 17 Ves. 415.
 
 Ch. 6.] OF OPENING THE COMMISSION. 139 
 
 merely on the ground of the attendance of the petitioning 
 creditor being inconvenient to himself. (1) But where the 
 party is so ill that he cannot attend but at the hazard of 
 his life, the Chancellor will in that case, upon a proper 
 affidavit of a medical man, make an order that his personal 
 attendance shall be dispensed with, and that the commis- 
 sioners may receive an office copy of the affidavit, made on 
 striking the docket, in proof of the debt. (2) If the peti- 
 tioning creditor should die, between the issuing and the 
 opening of the commission, his executors then will be per- 
 mitted by a special order to prove the debt. (3) 
 
 The witnesses to prove the trading, and the act of bank- Witnesses 
 ruptcy must also personally attend (4) before the com- gon^l/'*^^" 
 missioners ; but no witness, who is a creditor^ is admissible attend. 
 to prove these facts. Neither can the 'wife of the bankrupt Bank- 
 be examined to prove any of the requisites to support the '""P'- ^ 
 
 commission. (5) But it seems, that where there is a valid . , . 
 
 . . . As to m- 
 
 objection to the competency of a witness, if it be not taken compe- 
 
 before the commissioners prior to the adjudication, it can- *^6"cy of 
 
 Witness, 
 not afterwards be urged as an objection to the proceedings 
 
 under the commission. (6) The personal attendance, how- Excep- 
 
 ever, of a witness may be, under special circumstances, tio"* 
 
 dispensed with ; as where a separate commission had issued 
 
 against a party under which he was found a bankrupt, and 
 
 afterwards a joint commission was taken out against him 
 
 and his partners, and the only witness, who could prove 
 
 the act of bankruptcy against him, was in Cumberland 
 
 upon business of importance, — the Lord Chancellor in 
 
 this case permitted the commissioners to receive an affidavit 
 
 of the act of bankruptcy, made by the witness before a 
 
 Master Extraordinary, upon being informed that the joint 
 
 (1) 'Eyi ^avte Wilkinson, 1 Jac. & (4) Ex parte Allnid, iC.B.L. 
 W. 240. In re Graham, Buck. 47. 105. Ex parte Edivards, Ibid. 
 
 (2) Ex parte Edwards, 8 Ves. (5) Ex parte James, 1 P. Wms. 
 318. 611. 
 
 (3) Ex parte Winwood, 1 G. & {6) Ex parte Lane, 1 Mont. Dig. 
 
 J. 252. 89. •»
 
 140 
 
 OF OPENING THE COMMISSION. 
 
 [Ch. 6. 
 
 Proof of 
 lying in 
 prison. 
 
 Duty of 
 commis- 
 sioners. 
 
 Adjudi- 
 cation. 
 
 In case 
 
 bankrupt 
 
 dies. 
 
 commission was directed to the same commissioners as the 
 separate one. (1) But in a subsequent case of a similar 
 nature, where the application was opposed by the bank- 
 rupt, such an order was refused. (2) 
 
 As to the authority of the commissioners in enforcing 
 the attendance of the witnesses to prove the trading and 
 the act of bankruptcy, see post. Chap. VI. Sect. IV. & V. 
 
 Where the act of bankruptcy consists in lying in prisoji^ 
 the usual proof of it before the commissioners is, by pro- 
 ducing the certificate of the clerk of the papers signed by 
 him, and proved by a witness who can depose to his 
 signature. (3) 
 
 The evidence produced at this meeting of the com- 
 missioners being all ex parte, it is both their practice and 
 their duty, to enquire minutely into the fairness of the 
 petitioning creditor's debt, and the manner in which it 
 arose, as well as into the facts of the trading, and the act 
 of bankruptcy. (4) And if the result of the inquiry aflTords 
 to their minds sufficient evidence, (for they are not bound 
 to believe all that is sworn) (5) that the party has become 
 bankrupt within the intent and meaning of the statute, they 
 are then required to adjudge (6) him a bankrupt accord- 
 ingly ; that is, to declare generally (7), that he became 
 bankrupt before the date and suing forth of the com- 
 mission ; and they then sign an adjudication to that 
 effect. (8) The adjudication is so fur final, that the com- 
 missioners may, notwithstanding the subsequent death of 
 the bankrupt, proceed in the commission as if he were 
 still living (9) ; but they cannot adjudicate if the party is 
 already dead, the commission being in that case absolutely 
 
 (1) In re Wood, i Rose, 298. 
 
 (2) Ex parte Howe, 2 Rose, 339. 
 
 (5) 1 Mont. B. L. 403. 
 (4) 1 C. B.L. 103. 
 
 (,5) Ex parte Simpson, 1 Atk. 71. 
 
 (6) Section 24. 
 
 (7) Broviley v. Goodere, 1 Atk. 
 78. Ex parte Groome, Ibid. 119. 
 
 (8) For the form, see Vol. II. 
 
 (9) Section 26. Beasley v. Beas- 
 ley, 1 Atk. 97. ^\^z\te Dewdnei/, 
 15Ves. 494. Doe v. Clarke, 5 li, 
 &A.458.
 
 Ch.6.] OF OPENING THE COMMISSION. 141 
 
 abated, and the commissioners deprived of all further 
 authority. (1) 
 
 The Lord Chancellor has no authority to compel the Commis- 
 
 commissioners to adjudicate : for they are the only tribunal, s'''"^" 
 
 '' ' ,. "^ , . , . . cannot be 
 
 to which this particular proceeding (which is entirely dis- compelled 
 
 cretionary on their part) has been committed by the ^^ adjudi- 
 
 legislature. (2) Ail that the Chancellor can do is, to 
 
 order them to proceed generally in the execution of the 
 
 commission. But where the petitioning creditor, either but where 
 
 from the death, the absence, or the differing in opinion of ^fft^^jj^ 
 
 the commissioners, is unable to obtain any adjudication of fresh com- 
 
 the bankruptcy, he will be permitted, upon application to ™jg°gj 
 
 the Lord Chancellor, to take out another commission 
 
 against the bankrupt, upon the same docket papers on which 
 
 the first commission issued, directed (if in London) to 
 
 another list of commissioners next in turn at the Bankrupt 
 
 office. (3) 
 
 After adjudication, the commissioners are directed to Notice in 
 
 4-Vt r^ 
 cause a notice (4) thereof to be published in the next London ^ette 
 
 Gazette, by which three public meetings are appointed for 
 the bankrupt to surrender, — the last of which must be on 
 the forty-second day after such notice (5), and after a 
 similar notice also in v/riting left at the bankrupt's usual 
 place of abode. This last-mentioned notice is in the Notice to 
 form of a summons (6) from the commissioners to the ^^ ^" 
 bankrupt, requiring him to surrender, — which, if he is 
 in prison, must be personally served upon him. (7) In 
 some cases the Lord Chancellor has ordered the ad- When ad- 
 vertisement to be suspended, where the party will swear ^^''t.nt' sus- 
 that he is really solvent, and has committed no act of pended, 
 bankruptcy (4); though in one case the advertisement was 
 
 ( 1 ) Ex parte Beale, 2 V. & B. 29. ings, were first introduced by the 
 
 1 Rose, 140. 4&5Ann. c. 17. 
 
 (2; Ex parte Perrin, Buck. 510. (5) See Section 112. 
 
 (3) Ex parte Stead, 1 G. & J. (6) See Vol. II. 
 301. (7) Section 112. 
 
 (4) Section 25. The notice in (8) Ex parte Foster, 1 Rose, 51. 
 the Gazette, and the three meet- 17 Ves. 414. Ex parte Proston,
 
 142 
 
 OF OPENING THE COMMISSION. 
 
 [Ch. 6. 
 
 As to 
 
 bankrupt's 
 
 surrender. 
 
 Provi- 
 sional 
 assignee. 
 
 Warrant 
 to the 
 messenger. 
 
 Stayed with some hesitation, upon the applieation of a cre- 
 ditor, accompanied even with the consent of the petitioning 
 creditor. (1) But such an order will only be made, where, 
 on inspection of the proceedings, no bankruptcy is found ; — 
 or, where, under a Country commission, it is necessary to 
 give an opportunity of producing the evidence. (2) 
 
 The bankrupt, if he chooses, may surrender at the 
 meeting to open the commission, (without waiting for any 
 of the public meetings,) for the purpose of obtaining an 
 earlier protection from the commissioners. (3) 
 
 If an extent is apprehended against the bankrupt's 
 effects, or it is intended to carry on the trade, the commis- 
 sioners may at this meeting appoint a Provisional Assignee 
 of the bankrupt's estate (4<), — whom, however, it is the 
 practice to remove at the subsequent meeting for the choice 
 of assignees. But a provisional assignment ought not to 
 be executed without necessity, — for it will not in such 
 case be allowed in the bill of costs. (5) 
 
 When the commissioners have adjudged the party bank- 
 rupt, they issue their warrant to the messenger under the 
 commission, for the immediate seizure of all the bankrupt's 
 personal estate and effects. (6) As the power and authority 
 of this officer have been considerably enlarged by the pre- 
 sent statute, and as various rights and duties are connected 
 with, the office, it has been thought better to devote a 
 separate chapter to the consideration of this particular 
 subject. (7) 
 
 1 Rose, 259. Ex parte Fletcher, 
 Ibid. 337. In re Lewis, 2 Rose, 59.; 
 and see 17 Ves. 513. 
 
 (1) Ex parte Ogilby, 1 G. & J. 
 250. 
 
 (2) Ex parte Tarleton, 1 9 Ves. 
 464. 
 
 (s) Ex parte Wood, 18 Ves. 1. 
 1 Rose, 46. 
 
 (4) Section 45. 
 
 {5)^x\)?iTteM'Williams, \ Madd. 
 141.; and see post. " Assignees." 
 
 (6) Section 27 ; see Vol. II. for 
 the form. 
 
 (7) See post, Chap. VIII.
 
 14-3 i 
 
 CHAP. VII. 
 
 OF THE COMMISSIONERS. 
 
 1. Of their general Jurisdiction. 
 
 2. Of their Power over the Bankrupt. 
 
 3. Of their Power over the Bankrupts Property. 
 
 4. Of their Power over other Persons. 
 
 5. Of the Protection and Indemnity of Witnesses, and other 
 
 Persons attending the Commissioners. 
 
 6. Of the Custody of the Depositions and Proceedings. 
 
 7. Of Actions, and other Proceedings, against the Commis- 
 
 sioners. 
 
 Section I. 
 Of the general Jurisdiction of the Commissioners. 
 
 1 he jurisdiction of the Commissioners is derived from the Nature of 
 Lord Chancellor, by a commission under the Great Seal, — their juns- 
 and is, (like that of the Chancellor himself) as far as it ex- 
 tends, both equitable and legal ; for they have full power 
 and authority to act in many cases according to their dis- 
 cretion, besides being bound to act in other cases by the 
 strict directions of the statute. There were formerly seven. Number 
 and sometimes nine(l), commissioners in each commission; 
 but for a long time past the number has been limited to 
 five, who are all appointed and removable at the pleasure 
 of the Lord Chancellor. The place of a commissioner is 
 not one known to the law, (as Mr. Christian supposes) — but 
 each commission is a particular authority and delegation ; 
 
 (1) 1 Mont. 95. 
 
 of commis- 
 sioners.
 
 14,4 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 General 
 Jurisdic' 
 tion. 
 
 As to 
 power of 
 imprison- 
 ment. 
 
 No power 
 to commit 
 for a con- 
 tempt ; 
 
 or for pu- 
 nishment ; 
 not a court 
 of justice. 
 
 and the appointment of particular lists in the metropolis 
 is a mere arrangement, arising from the personal acts of 
 those who have held the great seal. The number of lists 
 may be extended, or diminished, at the chscretion of the 
 Lord Chancellor; and indeed, so recently as 1792, a new list 
 was added by the then Lords Commissioners. Before the 
 commissioners are capable of acting in the execution of any 
 of the powers and authorities vested in them by the com- 
 mission, they must (as we have seen(l)) take and admi- 
 nister to each other the oath of qualification, the form (2) 
 of which is given in the statute. (3) 
 
 In certain cases the commissioners have power to issue 
 process of imprisonment; but this power is intended not so 
 much to punish the party, as to compel an answer (4-) to 
 questions put by them to the bankrupt and Others, for the 
 discovery of the estate and effects; — and the process they 
 issue is in the nature of process for contempt. But they have 
 no power given them of committing generally for a contempt. 
 Thus, in the case of any person being guilty of riotous con- 
 duct in their presence, to the obstruction of their proceed- 
 ings — they are not empowered to commit the person for the 
 contempt, but only to order him to be taken before an 
 alderman, or justice of the peace. (5) They have indeed no 
 power of committing for punishment^ — for they are not 
 considered as a court ot justice (6) — and the cause of their 
 commitment is traversable. They are in no statute, or 
 legal proceeding, denominated Judges ; and the only au- 
 thority countenancing such an idea is that of Sir Edward 
 Coke, — wlio entitles the sixty-third chapter of his fourth 
 Institute, " The Court of the Commissioners upon the 
 Statute of Bankrupts." (7) In the context of the chapter 
 
 (!) Ante, 138. 
 
 (2) And see Vol.11. 
 
 (5) Section 21. 
 
 (4) And see Miller v. Seare, 2B1. 
 1141. Ferlcin \. Proctor, 2 Wils. 
 384. 
 
 (5) l&i2 G. 4, C. 115. 
 
 (6) Kinder v. Williams, 4 T. R. 
 378. 1 Ld. Raym. 467. 2 Black. 
 114.?. 8 Co. 121. 
 
 (7) The statute of 1 & 2 G. 4. 
 c. 115., for building offices for the 
 meetings of the commissioners, di- 
 rected the buildings, when com-
 
 Sect. 1.] OF THE COMMISSIONERS. Ii5 
 
 he does not say that they are Judges, but that their au- General 
 thority is by commission under the Great Seal ; and that as '^"q"* ^' 
 
 their jurisdiction and power is by force of acts of parlia- 
 
 ment, they ought to be pursued, or else they are subject 
 to the action of the party grieved. 
 
 But the Commissioners ai'e a tribunal sufficient to have As to pro- 
 their witnesses protected (1) ; though in this case it is J^ng"^ 
 rather a privilege than a protection ; for ihei/ have not power attending 
 to discharge a witness who is arrested during his attendance *^"^™' 
 on them ; but the witness is compelled to apply by habeas 
 corpits to one of the superior courts. They have power, 
 however, to administer an oath; and any person falsely 
 swearing before them may be indicted for perjury. (2) 
 
 Where the directions of the statute for the conduct of Discre- 
 the Commissioners are plain and positive, they ought to be poweTnot 
 strictly pursued; — but where any disaeiiofi is vested in them, subject to 
 — ihat is not subject to control. Thus the Court of King's '^'^"^^'^ • 
 Bench will refuse a mandanms to Commissioners of bank- 
 rupt, to certify the bankrupt's conformity to the Lord Chan- 
 cellor; the legislature having vested a discretion in the 
 Commissioners in that respect, with which the Court will 
 not interfere. (3) And where the Lord Chancellor sends back 
 to them the bankrupt's certificate, for the purpose of letting 
 in other creditors, the Commissioners are not confined to 
 that object, nor bound by the original certificate ; but the 
 whole is again open to their judicial (4) discretion. So, in 
 the examination of a person as to any portion of the bank- 
 rupt's property, which may have been received by him, — 
 they are to determine, at the hazard of an action, whether 
 the questions are such as the person is bound to answer ; 
 and the Lord Chancellor will not interfere, by making an 
 order upon them, to enforce answers to any particular 
 questions (5) to be put to such person. 
 
 pleted, to be called the " Court of (l) 2 Black. 1142. 
 Commissioners of Bankrupt;" but (2) Section 99. 
 this of course applied only to the (3) Ex parte King, 7 East, 92. 
 designation of the place, and not (4) Ex parte A'i/jg, 15 Ves. 126. 
 to the power of the persons who (5) Ex parte Farr, 9 Ves. -513.; 
 
 were to sit there. and see post, 157,
 
 lie 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 General 
 jurisdic- 
 tion. 
 
 Power to 
 expunge a 
 proof. 
 
 Commis- 
 sioners' 
 fees. 
 
 When 
 bound to 
 attend and 
 act; 
 
 By the 60th section of the new statute, the Commis- 
 sioners are now empowered to expunge, or reduce, the proof 
 of a debt under the commission, — an authority which 
 they did not possess before, and which, in many cases, may 
 be beneficially exercised, with respect to saving the ex- 
 pence of an application to the Lord Chancellor for that 
 purpose, — which last proceeding was always necessary 
 previous to the recent statute. 
 
 The Commissioners are entitled to receive the fee of 20,?. 
 each for every meeting, and the like sum for every deed of 
 conveyance executed by them, and for the signature of the 
 bankrupt's certificate. (1) Where a commission is executed 
 in the Country, every commissioner (who is a barrister) is 
 entitled to a further fee of 205. for each meeting ; and in 
 case he resides at a distance of seven miles or more from 
 the place of meeting, and travels such distance to the 
 meeting, he may receive a further sum of 20^. But no 
 Commissioner is entitled to any allowance for disbursements 
 or travelling expenses (2), nor indeed has the Chancellor 
 any power to make an order for allowing such expenses. (3) 
 And at every meeting under any Country commission, so 
 many of those commissioners as are barristers, and are 
 willing to attend, not exceeding three, are to be the 
 acting Commissioners, and entitled to their summonses 
 and fees, in priority to any of the other commissioners 
 named in the commission. (4) If any Commissioner shall 
 receive a further sum, or shall eat or drink at the charge 
 of the creditors, or of the estate of the bankrupt, or if 
 he shall order any such expense to be made, he is dis- 
 abled from ever acting again as a Commissioner. (5) The 
 solicitor to the commission is liable to the Commissioners 
 for their fees. (6) 
 
 Those Commissioners who consent to act, are bound to 
 attend a meeting when summoned for that purpose (7), and 
 
 (1) Section 22. 
 
 (2) Ex parte Harbin, 1 Rose, 59. 
 Ex parte Griffith, 2 Rose, 342. 
 
 (5) Ex parte Butter, 1 Mont.G38. 
 (4) Section 23. 
 
 (5) Section 21. ; and see Ex 
 parte Halliday, 1 Vin. 77. pi. 3. 
 
 (6) Ex parte Griffitlis, 2 Rose, 
 342. 
 
 (7) 1 Mad. GO.
 
 Sect. L] OF THE COMMISSIONERS. H7 
 
 must proceed upon the principle of the commission being General. 
 valid. ( 1 ) They are bound also to act throughout the J'j^^^^^- 
 
 . ° tion. 
 proceedings in every matter, accordmg to the best of their 
 
 judgment and discretion ; and though the Lord Chancellor 
 will assist them, in case of need, with the weight of his au- 
 thority, yet he will not encourage their declining to act in 
 any matter, merely for the purpose of having a petition pre- 
 sented to him, to obtain his opinion on the subject. (2) But when their 
 
 wherever the legislature has given authority to the Commis- ^"thority 
 
 . , ^ . . , ^ • 1 1- , 1- will be 
 
 sioners, without giving them power to punish disobedience assisted by 
 
 to that authority, or to make the authority available for its that of the 
 
 purpose, the Great Seal will lend the aid of its general ggj 
 
 jurisdiction, to execute and enforce the provisions of the 
 
 legislature- (3) 
 
 The Commissioners are, from the nature of their trust. Incapable 
 incapacitated from purchasing any of the bankrupt's pro- chash'"^ 
 perty, either for themselves or others. (4) And this dis- bankrupt's 
 ability attaches to a Commissioner, who has not even acted P'^^P^'^'^yj 
 under the commission ; but if he has obtained the consent except 
 of the creditors at a general meeting called for that pur- order. ' 
 pose, it seems, he may then become a purchaser under an 
 order of the Lord Chancellor. (5) 
 
 The same person cannot be solicitor and commissioner Solicitor, 
 
 under the same commission (6); and if any creditor of the ^[(■or'^'c'n- 
 
 bankrupt acts as a Commissioner (7), the commission will not be a 
 
 be superseded. ^?'^'^''- 
 
 ^ , , sioner. 
 
 An appeal lies from the determination of the Commis- Appeal. 
 sioners to the Great Seal by petition (8); and the Lord 
 
 (1) 16 Ves. 164. (5) Ex parte Harrison, Buck. 17. 
 
 (2) 15 Ves. 590. It appears from (6) Ex parte Ward, Sel. Ca. Ch. 
 several old cases in the books, that 46. 
 
 commissioners were formerly in the (7) Ex parte Prosser, 2 Rose, 
 
 practice of asking and receiving the .570. Ex parte Crundwell, 2 Mad. 
 
 opinion of the Court of Common 292. Ex parte Siori/, Buck. 70. 
 
 Pleas. 2 Christ. B. L. 9, 1 0. Ex parte Matheivs, 1 G. & J. 1 64. ; 
 
 (3) Ex parte Woolley, 1 G. & J. and see General Order, 25th July, 
 395. 1817. 
 
 (4) Ex parte Bennett, 10 Ves. (8) Bromley v. Goodere, 1 Alk. 
 381. 77. 
 
 L 2
 
 148 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 General 
 jurisdic- 
 tion. 
 
 Costs. 
 
 When 
 
 functi 
 officio. 
 
 Authority 
 not deter- 
 mined by 
 death of 
 the king, 
 or the 
 bankrupt. 
 
 Chancellor has power to remove them for misconduct. 
 He will not, however, upon a petition against them, order 
 them to pay costs, unless in respect of conduct out of the 
 course of their duty as Commissioners (1); and when they 
 are made parties to a petition without sufficient grounds, 
 they will then be entitled to costs. (2) 
 
 When the Commissioners have once executed an assign- 
 ment of the bankrupt's estate, and have afterwards given 
 him his certificate, they cannot make a subsequent assign- 
 ment, for they are then, as to this mzitiev, fimcti officio. (3) 
 
 The authority of the Commissioners is not determined, 
 as we have seen, by the death of the King, nor by the 
 death of the bankrupt after adjudication ; in the latter case 
 they are expressly empowered to proceed in the com- 
 mission, as if the bankrupt were still living. (4<) 
 
 Authority 
 to compel 
 surrender ; 
 
 Section II. 
 
 Of the Power of the Commissioners over tlie BanJcnipf. 
 
 As to the Examination of the Bankrupt previous to 
 Commitment, see post, Ch. XIII. 
 
 As soon as the party is declared a bankrupt, the Com- 
 missioners are empowered to call upon him to surrender 
 himself within the time limited by the statute. But if they 
 have reason to apprehend that he is embezzling his effects, 
 or preparing to depart the kingdom, they may summon 
 him to appear before them to be examined (5) immediately. 
 And in case the bankrupt disobeys their summons, (which 
 the Commissioners may now issue at any time, and for any 
 purpose, whether he has obtained his certificate or not,) 
 they may, if he has no lawful impediment made known to 
 and allowed by them, by warrant under their hands and 
 
 (1) Exparte &criA, l4Ves. 104. (3) Jacobson v. Williavis, I P, 
 ISVes. 295. Wms. 386. 
 
 (2) Ex parte Steele, 16 Ves, 161. (4) Section 26. 
 
 (5) Ex parte Ljwgoorf, 1 Atk. 240.
 
 Sect. 2.] OP THE COMMISSIONERS. 149 
 
 seals, authorize any person to arrest him and bring him Power 
 before them. (1) Upon the appearance of the bankrupt lankrupt. 
 
 before them, they may examine him upon oath, either by 
 
 word of mouth, or on interrogatories in writing (2), touch- gxalnbe* 
 ing all matters relating to his trade, dealings, or estate; or bankrupt, 
 which may tend to disclose any secret grant, conveyance, 
 or concealment of his lands, tenements, or effects. The 
 Commissioners have in this examination a duty imposed 
 upon them, as well as an authority, to get out an account 
 and discovery for the benefit of the creditors. (3) The 
 bankrupt's answers should be taken down in writing, and 
 he is required to sign them. If the bankrupt refuses to and com- 
 be sworn, or to answer any questions put to him by the P"^ J^\ 
 Commissioners, or does not fully answer to their satis- to answer, 
 faction, or refuses to sign his examination, — they may ^^' 
 then by their warrant commit him to prison, without 
 bail, until he shall submit himself to be sworn, and make 
 full answer (4) to their satisfaction to such questions as 
 shall be put to him, and sign his (5) examination. They 
 must, however, in every such commitment for refusing 
 to answer, or not fully answering, any question, specify 
 the question and answer in the warrant of commitment. (6) 
 
 As the Commissioners have but a special authority, in Liability 
 the commitment of the bankrupt and other persons to ""^^ ^j|_ 
 
 commit- 
 ment» 
 
 {\) Section oG. Formerly if the 202. Anon. 14 Ves. 450.) Both 
 
 bankrupt disobeyed the summons these proceedings, however, will 
 
 of the Commissioners, they could now be rendered unnecessary, 
 
 not issue their own warrant against (2) Section 36. 
 
 him, but were obliged (under the (.3) T'oy/ojVcase, 8 Ves. 328. 
 
 5G. 2. c. 50. s. 14.) to certify his (4) The answer must be full in 
 
 disobedience to a judge, or justice this sense, — thatitmustbereason- 
 
 of the peace, in order to obtain ably satisfactory to the mind that 
 
 from them a warrant for his appre- is to decide. (Per Lord Eldon, 
 
 hension. (And see Ex parte Hunt, Taylor'% case, 8 Ves. .^Sl.) 
 
 2 J. & W. 560.) And when the (5) And see iJexv. Parrot/, Burr, 
 
 bankrupt had passed his last ex- 1122. Taylor's case, 8 Ves. 528. 
 
 amination, it seems to have been Ex parte iVow/att, 11 Ves. 511. 
 
 the practice, to apply to the Lord (6) Section 59.; and see post. 
 
 Chancellor for an order on the Ch. XIII. " Of the Commitment 
 
 bankrupt to attend the Commis- of the Bankrupt." 
 sioners. (Ex parte Bradley, 1 Rose, 
 
 L 3
 
 150 
 
 OF THE COMMISSI OMEUS. 
 
 [Ch. 7. 
 
 Power 
 over the 
 bankrujit. 
 
 Warrant 
 
 ofcommit- 
 
 ment. 
 
 Bankrupt 
 not bound 
 to crimi- 
 nate him- 
 self. 
 
 When 
 commis- 
 sioners 
 bound to 
 commit. 
 
 prison (1), they must be careful not to exceed it; for an 
 action will lie against them in case of an illegal commit- 
 ment. (2) But to prevent their being perpetually harassed 
 with actions, the legislature has in a great measure pro- 
 tected them, in case of an innocent mistake, by enabling 
 them to tender amends (3), and to pay money into court 
 in any action brought against them, — as well as by giving 
 them double costs (4), in case of a verdict being found for 
 them. As they are not invested, however, with an un- 
 limited authority of committing whom and for what they 
 please, any warrant of commitment which they feel them- 
 selves called upon to issue, should pursue the words of the 
 act of parliament, and appear on the face of it to be within 
 the scope of their authority ; for the superior courts have 
 been very strict in their construction of the powers thus vested 
 in them by the legislature. (5) They have not power to 
 commit the bankrupt, or any other person, for not answering 
 a question, the answer to which would directly criminate 
 himself (6) ; but otherwise, if it would only tend to show 
 that he had done something criminal. (7) If the bankrupt, 
 however, refuse to account for any jpart of Ids effects^ on the 
 ground that his answer to the enquiry of the Commissioners 
 would criminate himself, such refusal subjects him to a 
 commitment. (8) 
 
 If the Commissioners think that the bankrupt has not 
 ansvoered satisfactorily upon Iiis examination, they are 
 bound to commit him ; for they are not obliged to give 
 credit to any absurd or improbable account, merely be- 
 cause he has the effrontery to swear to it. (9) Indeed 
 there are no technical rules by which cases of this kind 
 
 (1) Bracy\ case, 1 Salk. 348. 
 
 (2) And see post, " Actions." 
 (5) Section 45. 
 
 (4) Section 44. 
 
 (5) i?racy s case, Comb. 3 91. /if ej: 
 V. Nathan, 2 Str. 880. Hollings- 
 head's case, 2 Ld. Raym. 851. 
 1 Salk. 551. Brarr/ v. Harris, 
 
 5 Mod. 309.; and see post, " Of 
 the Commitment of the Bankrupt." 
 
 (6) 5 Mod. 509. Comb. 391, 
 
 (7) Ex parte C'ossens, Buck. 531. 
 
 (8) Ex parte Oliver, 1 Rose, 407. 
 
 (9) 6 T. R. 1 20. Doswell v. Im- 
 pey, 1 B.&C. 165.
 
 Sect. 2.] OF THE COMMISSIONERS. 151 
 
 can be determined ; but the question in each particular Power 
 
 case is, whether the answers given by the bankrupt be °hankru t 
 
 sufficient to satisfy the mind of any reasonable person. ( 1 ) 
 
 The bankrupt, however, after such commitment may be When 
 
 discharged, upon his answering satisfactorily to the com- ''^"'^J'^P' 
 
 missioners at a subsequent time — or, upon his answer dis- 
 
 already given being deemed satisfactory by the superior ^"^■g^''> 
 jurisdiction, before which he may be brought by writ of 
 
 habeas corpus. (2) But though the bankrupt should be without 
 
 afterwards discharged by habeas corjms, on the ground of gi^™^s*" 
 
 the Court thinking his answers satisfactory', an action of being 
 
 trespass will not lie against the commissioners. (3) For "^°'^- 
 in the exercise of their discretion, under the sanction of an 
 oath, they are required to commit, if the answers of the 
 bankrupt be not to their satisfaction. 
 
 The Commissioners cannot delegate their authority to Cannot 
 
 any other persons to examine the bankrupt, without his °^ .8^^^ 
 
 consent; for such persons are incompetent to exact any authority, 
 submission from him, upon which the commissioners can 
 commit. (4) 
 
 It seems somewhat doubtful whether the Commissioners As to being 
 
 should be influenced by extrinsic evidence in committinfif the J"""^"S^" 
 *^ . . . . * by extrin- 
 
 bankrupt for not answering satisfactorily ; but if they are so sic evi- 
 
 influenced, the evidence should be fully read over to the "^"^^• 
 
 bankrupt, before they can call upon him for an answer to 
 
 the questions proposed to him in his examination. (5) 
 
 (1) Ex parte Noivlan, 6 T. R. ('i)Ex. parte Cassidt/,2Rose,219. 
 118. llVes. 511. Tai/lor' s case, 19Ves, 324. 
 
 8 Ves. 328. (5) Crou'ley's case. Buck. 264, 
 
 (2) 1 Rose, 407. 2Swanst. 1. 
 (5) Doswell V. Impcy, 1 B. & C. 
 
 163. ; and see title " Actions." 
 
 L 4
 
 152 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 Power 
 over all 
 the real 
 and per- 
 sonal pro- 
 perty. 
 
 Warrant 
 of seizure. 
 
 Section III. 
 
 Of the Tffwer of the Commissioneis to seize the Bankrupts 
 Property. 
 
 And see further upon this head, " Messenger" 
 " Assignments'^ and " Assignees."" 
 
 The Commissioners have, by tfie fwelfth section of the 
 new act, full power and authority to take such order and 
 direction, as is afterwards particularly specified in the act, 
 with all the bankrupt's lands, tenements, and heredita- 
 ments, both within this realm and abroad, as well Copy or 
 Customary-hold, as Freehold, which he had in his own right 
 before he became bankrupt, as also with all such interest 
 therein as he may lawfully depart withal, and with all his 
 Money, Fees, Offices, Annuities, Goods, Chattels, Wares, 
 Merchandize, and Debts, wheresoever the same may be 
 found or known, and to make sale thereof as directed by 
 the act, or otherwise order the same, for satisfaction and 
 payment of the creditors of the bankrupt. 
 
 This clause is the foundation of the powers, which the 
 commissioners possess over the bankrupt's property. 
 
 As soon as the party is declared a bankrupt, the com- 
 missioners are then empowered to issue their warrant (1), 
 under their hands and seals, for the seizure of all the bank- 
 rupt's effects, books, papers, or writings, wherever they 
 may be, either in England, Scotland, or Ireland ; — and 
 their officer, in order to make such seizure, may break 
 open (2) any house or place where the bankrupt, or any of 
 his property, shall be reputed to be. If any of the efTects 
 are suspected to be concealed, a search-warrant (3) from a 
 magistrate may be obtained and executed in the same way, 
 as a search-warrant for stolen property. And when any 
 
 (1) Section 27. open any house, except the bank- 
 
 (2) The commissioners could rupt's. (2 Show, 247.); and see 
 not formerly justify the breaking post, 169. note (2). 
 
 (3) Section 29.
 
 Sect. 4.] OF THE COMMISSIONERS. 153 
 
 of the property is in Ireland or Scotland (1), the warrant Poivcr 
 
 • OVGT tilG 
 
 must be first verified in the manner dii'ected by the statute, bankrupt's 
 and indorsed, before it is executed, by a Judge Ordinary, property. 
 or justice of the peace, in the county where it is intended 
 to be executed. The property and the person should not 
 both be taken under one warrant, but there ought to be 
 two separate warrants for this purpose. 
 
 Section IV. 
 
 Of the Poxver of the Comrnissioners over other Persons than 
 the Bankrupt. 
 
 The authority of the Commissioners is, by the new Authority 
 
 statute, more complete and extensive than what they ^^ ^^^"^ * 
 1 • • • 1 1 warrant, 
 
 formerly possessed, in regard to requiring the attendance 
 
 of witnesses and other persons, to give evidence upon 
 oath before them of any matter relating to the bank- 
 ruptcy. (2) They may, now, not only summon witnesses to 
 depose, as to the trading and the act of bankruptcy, and 
 call for the production of any books and documents neces- 
 sary to establish the one or the other, — but they may also, 
 in case of disobedience to the summons, issue a ^warrant to 
 compel (3) their attendance. And the witness will incur 
 the same penalty for refusing to be sworn and examined, 
 for not fully answering, for refusing to sign his examin- 
 ation, or for not producing books or documents, as is 
 provided with respect to persons summoned after adju- 
 dication. (4) 
 
 (1) Section 28.; and see post, comjoe/ the attendance of witnesses, 
 title " Messenger." to prove the act of bankruptcy and 
 
 (2) Section 24. the tradinjr, without obtaining an 
 
 (3) This power was first given order of the Lord Chancellor for 
 to the commissioners by the tern- that purpose. (Ex parte Lund, 
 porary act of the 4& 5 Ann. c. 17. 6 Ves. 781. Ex parte Higgins, 
 but it was not again conferred upon 1 1 Ves. 8. Ex parte Jones, 1 Rose, 
 them before the 5 G. 4. c. 8 1 . ; pre- 39. &c.) 
 
 vious to which last-mentioned act, (4) Section 33. ; and see post, 
 the commissioners had no power to p. 1 54. et seq.
 
 154 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 Power 
 over other 
 persons. 
 
 Witness 
 alleging 
 himself a 
 creditor. 
 Trustees 
 bound to 
 produce 
 deed. 
 
 Where no 
 excuse for 
 non-at- 
 tendance. 
 
 Persons 
 suspected 
 to have 
 bankrupt's 
 property, 
 
 or to be 
 indebted 
 to bank- 
 rupt, &c. 
 
 Although a party summoned as a witness alleges that he 
 is a creditor, and therefore not competent as a witness, 
 it is no preliminary objection to his being examined by the 
 Commissioners, — for the result of the examination may 
 establish, that he is not a creditor. ( I ) Trustees, also, in a 
 deed of assignment of all the bankrupt's effects, are com- 
 pellable to produce it before the Commissioners, for the 
 purpose of proving thereby an act of bankruptcy (2); 
 though the petitioning creditor, as we have seen, if he has 
 acted under such a deed, cannot avail himself of it for 
 such purpose. A witness is not justified in refusing to 
 attend the Commissioners to prove the act of bankruptcy, 
 under a joint commission against two partners, because he 
 has already attended for the same purpose, under separate 
 commissions previously issued against them. And where, 
 in such a case, the petitioning creditor under the separate 
 commissions refused to disclose the person who proved the 
 act of bankruptcy under those commissions, the Lord 
 Chancellor inspected the proceedings under the separate 
 commissions, and ordered that person to attend the commis- 
 sioners under the joint commission at the peril of costs. (3) 
 
 The Commissioners are also empowered, after the party 
 has been adjudged (4) a bankrupt, to summon before them 
 any person suspected of having any of the bankrupt's pro- 
 perty in his possession ; and their power in this respect is 
 not confined to persons claiming a beneficial interest in 
 such property; for the mere detention of the property, 
 whatever may be the motive, is sufficient to give the Com- 
 missioners jurisdiction. (5) They may also summon any 
 one who is supposed to be indebted to the bankrupt, — as 
 well as any person whom they believe capable of giving 
 information (6) concerning any part of the bankrupt's 
 
 (1) In re Gooldie, 2 Rose, 330. 
 
 (2) Ex parte Cawkwcll, 1 Rose, 
 513. Ex parte Tieacher, Buck. 17. 
 
 (5) Ex parte Gardner, 1 Ves. & 
 B.74. 
 
 (4) Section 53. 
 
 (5) Ex parte Anderson, Buck. 
 397. 
 
 (6) The commissioners could not 
 before enforce the attendance of 
 any persons, except those suspected 
 of having the bankrupt's property,
 
 Sect. 4.] OF THE COMMISSIONERS. I55 
 
 estate, or any fictitious debt, or any spurious book or Power 
 
 document, or other transactions material to the full dis- ^^"' °^''^'' 
 
 persons. 
 closure of the dealings of the bankrupt ; and they may re- 
 
 quire the production of any books or documents, which raav .yf*" ^° 
 
 appear to them necessary to the venncation ot the depo- books, &c.j 
 
 sition of such person, or to the full disclosure of any of the 
 
 matters, which they are authorised to inquire into. And if to issue 
 
 any person so summoned neglects to come before them, ^^'"^^"'^ ^° 
 1 • 1 .- I • T 1 /-. • • compel at- 
 
 havmg no lawiul nnpediment, the Commissioners may, by tendance. 
 
 warrant under their hands and seals, direct him to be 
 apprehended and brought before them to be examined. 
 And this may be done after issuing one summons, thouo-h 
 it was formerly thought necessary to issue two sum- 
 monses before the warrant. ( 1 ) The propriety of granting 
 the warrant, being an act of discretion, must be deter- 
 mined upon by the Commissioners acting together at the 
 time; but the mere act of signing it may be done by 
 them separately. (2) 
 
 They have also power to examine (3) any person upon Power to 
 
 oath, either by word of mouth, or by interrogatories in ^''^'"^"^ 
 . , 11,. persons; 
 
 writing, concerning the person, trade, dealings, or estate 
 
 of the bankrupt (4); or concerning any act or acts of 
 
 bankruptcy by such bankrupt committed, and to reduce 
 
 into writing the answers of such person, and compel him 
 
 to sign them. And if any person refuse to be sworn, or and to 
 
 to answer any lawful questions put to him by the commis- commit in 
 
 sioners, touching any of the said matters — or shall not fully fusal to 
 
 answer to their satisfaction — or shall refuse to sign his ex- answer, 
 
 amination — not having any objection allowed by the com- ^' 
 
 missioners ; or shall not produce any books or documents 
 
 or of being indebted to his estate ; (2) Battye v. Greslcy, 8 East, 
 (Ex parte Levett, 1 G. &J. 185. ; 319. 
 and see ex parte Woolley, ibid. (s) Section 34. 
 395.) and their jurisdiction in this (4) The bankrupt, whose estate 
 respect was only supported, by ap- is sought to be charged by an ex- 
 plying to the Lord Chancellor for amination before the commis- 
 an attachment against those who sioners, has a right to be present 
 made default. 14 Ves. 449. during the examination. (Ex parte 
 (l) Dyer v. Missing, Bl. 1055. Eardlcy, 1 Mont. Dig. 115,)
 
 156 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 Power 
 over other 
 persons. 
 
 Incidental 
 right of 
 examin- 
 ation. 
 
 in his custody or power, which he was required to pi'oduce, 
 and to the production of which he shall state no objection 
 allowed by the commissioners, — in any of these cases, the 
 commissioners may, by warrant under their hands and 
 seals, commit him to prison without bail, until he shall 
 submit himself to them to do what they had previously 
 required of him. The warrant of commitment should, as 
 in the case of committing the bankrupt, pursue the words 
 of the act of parliament (1) ; and should also specify all the 
 questions and answers, as far as they are applicable to the 
 commitment. And in case an habeas corpus is brought 
 by the person committed, and there shall appear merely 
 an insufficiency in the^rm of the warrant, the Court, or 
 Judge, may re-commit the party until he shall conform, 
 unless it be shown that he has fully answered, or that he 
 had a sufficient reason for refusing to do what was required 
 of him. And the Court, or Judge, may look at the whole 
 of the examination, in order to consider whether the 
 answers of the party were satisfactory or not. 
 
 As the Commissioners are authorised to examine a wit- 
 ness concerning the trading, or the act of bankruptcy, or 
 the estate and effects of the bankrupt, they may inci- 
 dentally to this power examine him also respecting other 
 individuals, through whom they may be likely to obtain 
 information on those points. Therefore, where a witness 
 was asked questions, as to when and where he last saw the 
 bankrupt's wife, it was held, that such questions were both 
 legal and material, and that the commissioners were jus- 
 tified in committing him for giving unsatisfactory answers 
 to those questions. (2) The true criterion of judging as 
 to the propriety of the commitment, is to consider all the 
 questions and answers collectively — and then to say, 
 whether the "johole examination is satisfactory or not. 
 Therefore, though some of the answers, when taken alone. 
 
 (1) Rex V. Nathan, 2 Sir. 880. (2) Ex parteFoge/, 2 B. & A. 
 Salk.55I. 2Ld. Raym. 851.; and 219. 
 see ante, lis.
 
 Sect. 4.] OF THE COMMISSIONERS. 157 
 
 may be considered satisfactory, — yet this is no objection to Power 
 
 a warrant committing the party, till he should make full ^f^sm^'^^ 
 answers to all the questions put to him. (1) 
 
 The Lord Chancellor will not in general intrude upon As to re- 
 
 the discretion of the Commissioners in the examination of ^traimng 
 
 111 T -1 the ex- 
 
 witnesses — although, upon extraordmary occasions, he may amination 
 
 limit their examination to a particular mode, or to par- of the 
 
 I . rr>, 1 • • p 1 1 r- COmiuis- 
 
 ticular pouits. Ihus, the exammation or the mother ot siouers. 
 the bankrupt was, on petition, ordered to be limited to her 
 son's trading ; but Lord Hardwicke refused to restrain the 
 Commissioners, from asking any question that might be 
 relevant thereto. (2) And when a banker, who had been 
 summoned before the Commissioners, instead of attending 
 them, petitioned the Lord Chancellor that the Commis- 
 sioners might be restrained from asking him certain ques- 
 tions, the petition was dismissed on the opening of the 
 petitioner's counsel — Lord Hardwicke saying, that he would 
 not limit or restrain Commissioners in their examination ; 
 for if he did, it would be attended with expense and in- 
 convenience from other applications of this kind ; and that 
 he would not presume, that they would ask trifling and im- 
 material questions. (3) 
 
 It was formerly holden, that a person suspected of de- Party 
 taining the bankrupt's effects, and who, before the com- bound to 
 mission issued, had obtained some goods from the bankrupt thout^h it 
 in discharge of his own debt, was not bound to answer, expose his 
 whether any of the bankrupt's effects had come to his tiye title •" 
 hands before the issuing of the commission ; — and that it 
 was sufficient for him to swear generally, that he had none 
 of the estate of the hanJcrupt in his hands. (4}) But it has been 
 since ruled, that a witness is bound to give an account of 
 what he knew of the bankrupt's effects, as well before, as 
 after, the bankruptcy ; and Lord Erskine said, that Com- 
 
 (1) Ex parte Vogel, 2 B. &. A. (3) Ex parte BImd, 1 Atk. 205.; 
 219. and see ante, 145. 
 
 (2) Ex parte Parsons, 1 Atk. 204. (4) Jeakil's case, 3 Keb. 837,
 
 15S 
 
 OF THE COMMISSIONERS, 
 
 [Ch. 7. 
 
 Power 
 over other 
 persons. 
 
 but not 
 compelled 
 to crimi- 
 nate him- 
 self; 
 
 or to de- 
 stroy his 
 own pro- 
 ceedings. 
 
 To what 
 bankrupt's 
 wife may 
 be examin- 
 ed. 
 
 missioners, of their own authority, may examine parties, 
 and make them confess the infirmity of their title. (1) 
 Notwithstanding, however, a person suspected of having 
 the bankrupt's property in his possession is bound to 
 answer questions, thougli the answer may expose his own 
 defective title, he is not (any more than the bankrupt) 
 compelled to do so, if the answer w^ould dh-edly criminate 
 himself (2); though he is not excused, if the answer would 
 only TEND to shew, that he had done something criminal. (3) 
 If a witness, however, do unguardedly answer questions 
 to which he might have demurred, his answers may be 
 adduced in evidence against him, for all purposes to which 
 they are legally applicable. (4) And the Commissioners 
 vf\\\ not be restrained from examining parties, upon a 
 mere allegation, that the object of the examination is to 
 procure evidence against them, as to penalties incurred by 
 gaming. (5) But the Commissioners under a joint com- 
 mission cannot compel the petitioning creditor to a prior 
 separate commission to attend them, in order to give evidence 
 in support of the subsequent joint commission against the 
 same party and his co-partner ; for this would be compelling 
 him to be a witness to destroy his own proceedings. (6) 
 
 The Commissioners are also empowered to summon 
 before them the "iSoife (7) of the bankrupt, and examine 
 her for the purpose of discovering such part of the 
 bankrupt's estate and effects, as may be concealed, kept, 
 or disposed of, either by herself or by any other person ; 
 and she will incur the same penalty for refusing to be 
 sworn and examined, or for other disobedience to the 
 authority of the Commissioners, as other persons are 
 liable to in this respect. But, though the wife may be 
 examined by the Commissioners, as to the bankrupt's 
 
 (1) Ex parte Herbert, 13 Ves. 
 189. 
 
 (2) 5 Mod. 309. Comb. 391. 
 
 (3) Ex parte Cossens, Buck. 531. 
 
 (4) Smithy. Beadnell, 1 Camp. 30. 
 
 (5) Ex parte Burlton, 1 G. & J. 
 
 30. 
 
 (6) Ex parte Stones, i G. & J. 7. 
 
 (7) Sectional. 
 
 23
 
 Sect. 4.] OF THE COMMISSIONERS. 159 
 
 jnoperty^ they have no power to examine her on any PoweT 
 matter relating to the act of bankruptcy : for, bv the com- ''^'^' "^^'^'' 
 
 *^ t- ./ ' 7 J persons. 
 
 mon law, a wife cannot be a witness either for or against 
 
 her husband; and this special authority given to the Com- 
 missioners, which breaks in upon that rule of law, is not 
 to be extended beyond what the statute gives them. (1) 
 It has been also considered questionable, whether the bank- 
 rupt's wife is admissible to prove payments in contemplation 
 of bankruptcy. (2) 
 
 The Commissioners may likewise examine upon oath, Creditors, 
 either by word of mouth, or by interrogatories in writing, 
 every person claiming to prove a debt (3) under the com- 
 mission, and may require such further proof, and examine 
 such other persons in relation thereto, as they shall think 
 fit. And it seems, that the power of the Commissioners 
 in the examination of a creditor of the bankrupt, in respect 
 of a debt which he seeks to prove, is not different from 
 that which they may exercise, in the examination of other 
 persons concerning the bankrupt's property ; and that they 
 may compel him to produce books relating to his trans- 
 actions with the bankrupt, in the same way as they can 
 enforce the production of books from other persons — or, if 
 they choose, by the more indirect method of refusing other- 
 wise to receive the proof of his debt. (4) 
 
 The Commissioners may also at all times summon the Assignees, 
 assignees (5) before them, and require them to produce all 
 books, &c. relating to the bankruptcy, — and, in default of 
 their attendance, may issue their warrant to enforce it; 
 and they have the like power of commitment with respect 
 to them, as with respect to other persons. 
 
 As the Commissioners cannot issue subpoenas, they must, 
 upon any collateral questions, or other matters coming before 
 
 (1) Ex parte James^ 1 P. Wnis. (4) Ex parte Woollet/, 1 G. & J. 
 611. 398. 
 
 (2)lEsp. 67. {5) Section 10\. 
 
 (3) Section 45,
 
 ICO 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 Power them, for inquiring into which they are not empowered to 
 
 over other 
 persons. 
 
 issue their summons, proceed by affidavit. ( 1 ) 
 
 Witnesses 
 privileged 
 from ar- 
 rest; 
 
 so a cre- 
 ditor at- 
 tending to 
 prove. 
 
 Where 
 arrest 
 amounts 
 to a con- 
 tempt. 
 
 Section V. 
 
 Of the Proteciioti a?id Indemnity of Witnesses^ and other 
 Persons, attending the Commissio7iers. 
 
 Witnesses summoned to attend Commissioners of Bank- 
 rupt have the same privilege, as those attending Courts of 
 Justice, namely, the exemption from arrest eundo, redeundo, 
 et viorando.{2) And it is not material, whether the witness be 
 summoned in writing, or verbally, by the messenger (3), — 
 provided the Commissioners afterwards adopt the verbal 
 summons. The privilege also extends to persons who attend 
 voluntarily, on a mere application to them for that pur- 
 pose (4<); or who, on their own importunity, are summoned 
 by the Commissioners (5) ; as well also as to one who at- 
 tends, even without any application, and requests to be ex- 
 amined as a witness, — provided the Commissioners signify 
 their intention to do so; but it is a question whether, in 
 this last case, such person would be entitled to protection 
 eundo. [Q) 
 
 A creditor, also, who attends to prove his debt, has the 
 same privilege, as a witness who is summoned before the 
 Commissioners ; for he is as much entitled to protection, as 
 any party attending the prosecution of his suit in a Court 
 of Justice. (7) 
 
 If the arrest of the witness, or the party attending, 
 amounts to a contempt, the application for his discharge is 
 made to the Lord Chancellor upon motion {8); the order 
 
 ( 1 ) Ex parte Thistletvood, 1 9 Ves. ( 6) Ex parte Bayne, 1 Rose, 451. 
 250. 1 V. &B.316. 
 
 (2) Ex parte Stow, 2B1. 1142. 
 
 (3) Arding v. Flower, 8 T. R. 
 534. 
 
 (4) Ibid. Ex parte King. 
 
 (5) Ex parte Kerney, 1 Atk. 54. 
 
 V. cc o.aib. 
 
 (7) Ex parte List, 2 Rose, 24. 
 Ex parte King, 7 Ves. 316. Ex 
 parte Bryant, 1 Mad. 49. 
 
 (8) Anon. 1 Rose, 230. The 
 Court of King\ Bench have re-
 
 8601.5.] OF THE COMMISSIONERS. 161 
 
 upon which is entitled in the bankruptcy (1); and the Protection 
 Lord Chancellor administers the oath by the register, and '^ '^' " 
 
 •z o ' 71 esses. 
 
 examines the party himself.(2) The party arrested may also 
 
 proceed by process against the officer and solicitor for the 
 contempt. (3) If the arrest does not amount to a con- Where it 
 tempt, then the proper course is to apply by petition ; and ""^ 
 the Chancellor, upon an affidavit of the facts, will order 
 him to be discharged. And in case of a detainer being 
 lodged after the arrest, that will also be set aside, if the 
 original arrest is bad. But in both cases, the arresting and 
 the detaining parties will have an opportunity of being heard 
 against the petition, or the motion for the discharge. (4) 
 With respect to the costs of an application to be dis- As to the 
 charged from such an arrest, they will be ordered to be paid ^°^^^. ^^ 
 by the officer or person causing the arrest, — but will at the cation for 
 same time in general depend upon, whether a contempt was discharge, 
 intended, or not, by the party arresting ; they have been or- 
 dered, where the witness was arrested by the bankrupt. (5) 
 Where the crown is the arresting creditor, the order for 
 discharge must be upon the gaoler. (6) If the application Where 
 for the discharge only affects the creditor arresting, the l^^l^^ ^^' 
 party may be forthwith discharged ; but where there are 
 other detainers, the Court must hear the persons by whom 
 they are lodged, for the purpose of ascertaining, whether 
 they are founded upon the original arrest. (7) 
 
 Every witness summoned to attend before the commis- Tender of 
 sioners, must have his necessary expenses (8) tendered [to ^^^"^,^^^J 
 him, in like manner as is required, upon service of a sub- 
 
 expenses. 
 
 fused to grant such an application, (4) Ex parte King, 7 Ves. 515. 
 
 on the ground, that that Court Ex parte Doidevy, Ibid. 318. Ex 
 
 was not the Court of which the parte Byne, iV. &B. 316. Ex 
 
 contempt was committed. Kinder parte Ross, 1 Rose, 360. Ogfe's 
 
 V. Williams, iT.R. 377. case, 11 Ves. 256. Castle's case, 
 
 (1) 11 Ves. 556. 16Ves.413. 16Ves.413. 
 
 (2) 16 Ves. 413. Ai//elt' s case, (5) Ex parte Bt/nc, supra. 
 
 cit. ibid. Gascoigne's case, 14 Ves. (6) Ex parte Russell, 1 Rose, 
 
 183. 278. 
 
 (3) Ex parte Kerney, 1 Atk. 54. (7) Ex parte A't/zj?, 7 Ves. 3 1 2. 
 Ex parte King, 7 Ves. 315. (8) Section 35. 
 
 M
 
 162 
 
 OF THE COMMISSIONERS. 
 
 [Ch.7. 
 
 Protection 
 of wit- 
 nesses. 
 
 When 
 tender un- 
 necessary. 
 
 As to right 
 of party 
 examined 
 to have 
 counsel. 
 
 poena to a witness in an action at law. It is not necessary, 
 however, upon summoning a person suspected to have any 
 of the bankrupt's property (as it is in summoning a wit- 
 ness) to tender him the expenses of his journey before hand, 
 even though the commissioners may have made an order, 
 in the first instance, for the payment of his expenses, — 
 and the assignees have in fact offered to pay such expenses 
 as the commissioners shall think reasonable (1) ; but he 
 may afterwards, when his examination is concluded, be 
 allowed such charges as the commissioners shall think 
 fit. (2) If he is indeed without the means of taking the 
 journey, that may be an excuse for not obeying the sum- 
 mons, but will not invalidate the warrant of the commis- 
 sioners to bring him before them ; and the o?ms lies on 
 the person summoned, in all cases where he brings an 
 action against the commissioners, to prove that he was pre- 
 vented by a lawful impediment from attending them. (3) 
 After a party has been examined, he may maintain assump- 
 sit for any costs directed by the commissioners to be paid 
 to him, although such order is merely by parol. (4) 
 
 A person, who is summoned before the commissioners 
 to be examined by them, is not entitled to the assistance 
 of counsel, as a matter of right, but merely as a matter of 
 indulgence on their part ; and Lord Hardwicke, upon one 
 occasion, refused to make an order upon commissioners to 
 permit a person so summoned to have counsel, — though he 
 recommended them, in that particular instance, to permit 
 it. (5) This indulgence, however, has in the present day 
 become quite a matter of common practice, and there is 
 no instance of its being refused. (6) 
 
 If a witness is prevented by any lawful impediment from' 
 attending the commissioners according to their summons, 
 he ought, for his own protection, to make it known to 
 
 (1) Ex parte Roscoe, 2 Rose, 
 345. 
 
 (2) Section 35.; and see Ex 
 parte Benson, 2 Rose, 75. Ex parte 
 Roscoe, supra. 
 
 (3) Ibid. ; and see Battye v. 
 Gresley, 1 8 East, 319. 
 
 (4) Yarker v. Botham, 1 Esp. 64. 
 
 (5) Ex parte Parsons, 1 Atk. 204> 
 
 (6) Eden's B. L. 82.
 
 Sect. 6.] OF THE COMMISSIONERS. Igf 
 
 them, and obtain their allowance for the excuse ; otherwise 
 a warrant will issue against him as a matter of course. 
 
 Section VI. 
 Of the Depositions, 
 
 The Depositions and Proceedings taken before the Com- A party 
 missioners are not of a public nature, but taken principally 'l^.*^ *:"" 
 to defend themselves; no one, therefore, is entitled to a copy of his 
 copy of them (l); and the Court of King's Bench refused disposition; 
 the application of a party, for a copy even of his own de- 
 position. (2) It is, however, in the discretion of the Lord but Lord 
 Chancellor to permit, or refuse, any party to have a copy of ^'?/^"" 
 his examination before the commissioners. (3) But where permit a 
 a bill was brought by assignees for a discovery of the ^°P^ *° ^^ 
 
 bankrupt's effects, the Lord Chancellor would not allow ttt. 
 
 ' ' _ When 
 
 the defendants to look into their own depositions before refused, 
 the commissioners, in order to make their answers con- 
 sistent (4) ; — - Lord Hardwicke observing — that as truth is 
 always uppermost, they might put in an answer consistent 
 with what they had already sworn in their depositions, 
 supposing them to be true ; — and if false, they swore at 
 their own peril. 
 
 But though the Depositions and Memorandums of the Custody of 
 
 commissioners' proceedings are taken in some measure for W°' 
 1 • • 1 1 . /- 1. 1 ceedmgs, 
 
 their own protection, yet as the object of all the proceed- 
 ings under the commission is for the benefit of the bank- 
 rupt's creditors, the assignees (who represent the creditors) 
 and not the commissioners, are entitled to the custody of 
 them. (5) They are usually kept by the solicitor nominated 
 by the assignees ; and when the production of them be- 
 comes material for the purposes of justice, neither the so- 
 
 (1) Ex parte Watson, 1 C. B. L. (.5) Ex parte Chater, Buck. 290. 
 105. (4) Boden v. Bellow, 1 Atk. 288. 
 
 (2) Bracy\ case, 1 Ld. Raym. (5) Ex parte 5crtr//i, 15Ve8. 29,5. 
 153. 
 
 M 2
 
 1$.# OF TH£ COMMISSIONERS. [Cll. ?• 
 
 Dcposi- licitor, nor the assignees, will be permitted to say that they 
 °'"' are in any person's hands but their own. (1) Depositions, 
 
 What con- also, upon which the commissioners have founded a report 
 aiTofthe ^° ^^^ Lord Chancellor upon a reference to them, are pro- 
 proceed- ceedings under the bankruptcy, and as such are to be left 
 "^S"' in tlie custody of the assignees; but the report must be 
 
 filed in the Bankrupt office. (2) And any books or docu- 
 ments, referred to by the bankrupt on his last examination, 
 form likewise part of the proceedings under the commis- 
 No lien on gion. (3) But neither the solicitor to the commission, nor 
 any officer of the court, has a lien on the proceedings for 
 their costs or fees in any matter relating to them (4); and 
 costs will always be given against that person who, by re- 
 fusing to deliver them up to the assignees, drives them to 
 an application to the Lord Chancellor to obtain them. (5) 
 
 Section VIL 
 OfActions^ and other Proceedings, against the Commissioners. 
 
 The new statute has introduced several fresh regulations 
 with respect to actions against Commissioners, affiDrding 
 them, very properly, the same protection as that possessed 
 The Court by justices of peace. Thus by Sectioti 40, in the event 
 at the ^^ ^"y action being brought against the commissioners by 
 whole of the bankrupt, or other person, for being committed by 
 minatbn. them for refusing to be examined, or not fully answering 
 to questions, the Court or Judge upon the trial (if required 
 by the defendant) may, in case the whole of the examin- 
 ation of the party so committed shall not have been stated 
 in the warrant of commitment, inspect and consider the 
 whole of such examination ; and if it shall then appear to 
 
 (1) Per Lord Eldon. Ex parte (4) Ibid. 395. Ex parte JS«///#w, 
 BuUcn, 1 Rose, 135. Ibid. 134. Ex parte Sandison, Ilrid. 
 
 (2) Ex parteiVezi'^ow, 2Rose,]9. 27^. 
 
 (5) Ex parte Hardy, 1 Rose,39e. (5) Ex parte Hardy, l Rose,396.
 
 Sect. 7.] OF THE COMMISSIONERS. 165 
 
 the Court or Judge, that the party was lawfully committed, Actions. 
 the defendant will have the same benefit therefrom, as if 
 the whole of the examination had been stated. 
 
 No action can be commenced against any Commissioner Notice of 
 for any thing done by him as such, unless notice in wri- '*'^*^°"- 
 ting(l) of the intended writ or process shall have been 
 delivered or left at his usual place of abode, by the attorney 
 for the party intending to sue out the same, at least one 
 calendar month previously ; the notice, too, must set forth 
 the cause of action, and must be indorsed with the name 
 and place of abode of the attorney, who is to receive no 
 more than 205. for preparing and serving it. In default of 
 proof of such a notice, the commissioners will be en- 
 titled to a verdict, and costs against the party bringing the 
 action ; and no evidence can be given by the plaintiff, on 
 the trial, of anjj^ other cause of action than what is con- 
 tained in the notice. (2) 
 
 Every Commissioner may also, within one calendar May 
 
 month after such notice, tender (3) amends to the party *^^""^^ 
 
 ^ ' . amends, 
 
 complaining, or to his agent or attorney ; and if not ac- 
 cepted, may plead the same in bar to any such action, to- 
 gether with the plea of not guilty, and any other plea, with 
 leave of the Court ; and if the jury shall find the amends 
 so tendered to have been sufficient, they are to give a 
 verdict for the defendant. If the plaintiff shall become If plaintiff 
 nonsuit, or discontinue his action, or if judgment shall be becomes 
 given for the defendant upon demurrer, the commissioner 
 will be entitled to the like costs, as he would have been 
 entitled to in case he had pleaded the general issue only. 
 But if the jury shall find that no amends, or not sufficient, 
 were tendered, and also against the defendant on the other 
 plea or pleas, the plaintiff will then be entitled to a verdict 
 for damages and costs. And though the commissioner may pay 
 neglects to tender amends, or tenders insufficient, previous "^[^Q^omt, 
 to the action, — he may, nevertheless, by leave of the Court, 
 
 (l) Section 41. (3) Seclion 45. 
 
 ('i) Section 42. 
 
 M 3
 
 1C6 
 
 OF THE COMMISSIONERS. 
 
 [Ch. 7. 
 
 Actions. 
 
 Limitation 
 of actions. 
 
 May plead 
 general 
 
 •Defendant 
 entitled to 
 double 
 costs. 
 
 When 
 conamis- 
 sioneirs 
 liable to 
 action. 
 
 at any time before issue joined, pay into Court such sum as 
 he shall think fit; upon which such proceedings shall be 
 had, as in other actions where the defendant is allowed to 
 pay money into Court. 
 
 Every action against any person, for any thing done in 
 pursuance of the act, must be commenced within three 
 calendar months (1) next after the fact committed ; and the 
 defendant may plead the general issue, and give the statute 
 and the special matter in evidence at the trial, and that 
 the same was done by authority of the statute ; and if it 
 shall appear to have been so done, or that the action was 
 commenced after the time limited for bringing it, the de- 
 fendant will be entitled to a verdict ; and in that case, or 
 in case of a nonsuit, or discontinuance of the action after 
 appearance, or if upon demurrer judgment shall be given 
 against the plaintiff, the defendant will be entitled to double 
 costs. 
 
 The right of action against the Commissioners is founded 
 upon the general rule of law, applicable to all actions of tress- 
 pass against persons having a limited authority. If they do 
 any act beyond that limit, they thereby subject themselves 
 to an action of trespass ; but if the act done be wil/im the 
 scope of their authority, although it be done through an 
 erroneous or mistaken judgment, they are then not liable (2) 
 to such action. Thus, though it was formerly held that 
 an action would lie against them, for committing a person 
 for not answering improper questions, or not acquiescing 
 in a proper answer (3), — it has been since decided, that 
 commissioners are not liable to an action of trespass for 
 committing a bankrupt, who does not answer to their satis- 
 faction, notwithstanding he is discharged afterwards by 
 habeas corpus on the ground of the Court thinking the 
 answers (4) satisfactory ; for the commissioners have a 
 discretionary power to commit, if the answers are not 
 
 (1) Section 44. 
 
 (2) Per Abbott C. J. Doswell v. 
 Jinpey, 1 B. & C. 1 G9., and see 
 ante, 1 50. and soq. 
 
 (3) Miller v. Scare, 2 Bl. 1141. 
 
 (4) Dosivell V, Impey, 1 B. & C. 
 IC.'J.
 
 Sect. 7.] OF THE COMMISSIONERS. 167 
 
 satisfactory to themselves. Neither will any action lie Actions. 
 against commissioners for a commitment, which is bad only 
 in consequence of a formal defect in the warrant. (1) 
 
 In an action brought against the Commissioners by a Where 
 
 person apprehended on their warrant, for not obeyinir a ^""'9;. 
 
 . ... p proof lies 
 
 .previous summons requiring his attendance before them, on plain- 
 it lies on the party summoned, having a lawful excuse for ^'^* 
 not attending, to prove the fact of his being prevented 
 from attending by a lawful impediment. (2) 
 
 When the Commissioners have incurred any costs, by Right to 
 
 defend ins: an action brought against them for an act done '""emnity 
 *=• . . . . trom costs. 
 
 in the strict discharge of their duty, they have a right 
 
 to be compensated by the assignees ; and the Chancellor 
 will not restrain them from bringing an action to recover 
 such costs, though the assignees have not received suffi<:ient 
 to pay the expenses of the commission, and have, in fact, 
 no prospect of obtaining any more of the bankrupt's pro- 
 perty. The Commissioners, indeed, act under a double 
 security; for, besides that which every other judge is en- 
 titled to in the exercise of his duty, they have also the 
 covenant of the assignees. (3) 
 
 Where the bankrupt is confined in prison under pre- How far 
 
 vious process, the mere issuing of the commissioners' war- warrant 
 , . . ... evidence 
 
 rant does not amount to an imprisonment by them, until it of the 
 
 has been in some way operative to the detention of the ""prison- 
 party, independently of the other process ; for the warrant 
 is only evidence of the order for imprisonment, and not of 
 the imprisonment itself. But if it operate to the confine- 
 ment of the party within narrower bounds, it is then, 
 coupled with proof of that fact, evidence of an imprison- 
 ment by the commissioners. (4) 
 
 Where the bankrupt had been already nonsuited in an Court will 
 action against the Commissioners in the King's Bench, ^J^ediu^f'T 
 
 (1) Bract/ i case, Comb. 391. (3) Ex parte Z/iw^Aa-auV, 16 Ves. 
 
 (2) Baltye v. Gresley, 8 East, 214. 
 
 319. (4) Crowley v. Impey, 2 St; 
 
 261. 
 
 M 4'
 
 168 
 
 OF THE COMMISSIONERS. 
 
 [Ch.7. 
 
 Actions. 
 
 till costs of 
 a former 
 action 
 paid. 
 
 When 
 commis- 
 sioners' 
 may mr.ke 
 affidavits 
 in answer 
 to any pe- 
 tition. 
 
 on the ground that he was not prepared with evidence to 
 prove the validity of a former commission, the Court of 
 Common Pleas, in an action for the same cause, stayed 
 the proceedings until the plaintiff paid the costs of the 
 former action. (1) 
 
 Notwithstanding a petition from the bankrupt, or any 
 other person, reflects on the conduct of the commissioners, 
 they are not called upon, and indeed ought not, to make affi- 
 davits in answer to the allegations contained in it, unless they 
 are actually served with the petition. In that case they 
 are made parties, and may properly come forward, and 
 defend their conduct upon affidavit; but they are not 
 otherwise to make themselves a species of witnesses, either 
 with respect to their own conduct, or the general nature 
 of the transactions under the commission. They are to 
 take it for granted, that the Lord Chancellor will give them 
 credit for having acted properly, unless such a case appears 
 upon the petition, as induces him to call upon them for an 
 explanation of their conduct, — in which case, if the im- 
 putations against them prove to be groundless, they will 
 then have justice done them with respect to their costs and 
 expenses. But this cannot be done, where they come 
 forward as parties, without being served with the petition. (2) 
 
 (1) Crowley v. Impey, 8 Taunt. 
 407. 2 Moore, 460. 
 
 (2) Ex parte Husband, 1 G. & J. 
 
 108. ; and see Ex parte Steele, 
 16 Ves. 161. Ex parte Scarth, 
 14Ves. 104. 1."; Ves. 295.
 
 1.69 
 
 CHAP. VIII. 
 
 OF THE MESSENGER. 
 
 1 HE Messeno:er is the officer of the Commissioners, and Nature of 
 his duty is to execute promptly the summonses and war- omce. 
 rants directed to liim by them, whether for the seizure 
 of the bankrupt's property, or for summoning or appre- 
 hending the bankrupt, or other persons, during the different 
 proceedings under the commission. For his trouble in 
 the discharge of these duties, he is entitled to certain fees, 
 which are taxed by the commissioners, and are paid out of 
 the bankrupt's estate. There are several messengers at- 
 tached generally to the commissioners of bankrupts in 
 London ; and it is usual for the solicitor, who issues a town 
 commission, to nominate which of them he chooses to act as 
 messenger under it. 
 
 The messenger is amply protected in the discharge of His autho- 
 
 his duty, if he behaves himself properly, and does not ex- "^y ^^ ^° 
 . . . ^ i V J ^ j-j^g seizure 
 
 ceed the limits of his authority, as defined in the various of the 
 enactments of the statute. He may, by warrant under the bankrupt's 
 hands and seals of the commissioners, " break open ( 1 ) and pro- 
 any house, chamber, shop, warehouse, door, trunk or perty. 
 chest of any hanh-upti^), where the bankrupt or any of his' 
 property shall be reputed to be, and seize upon the body, 
 or property, of the bankrupt." And if the bankrupt be in 
 prison or in custody, he may seize any jpropcrty (3) (except 
 
 (1) Section 27. &c.," — under which last construc- 
 
 (2) The wording of this section tion, the messenger would not be 
 is rather obscure; for it seems justified in breaking open any 
 doubtful whether the words, " of house, &c., except the house of the 
 any bankrupt" are intended to hankrupt. And this, indeed, was 
 apply only to " trunk or chest," formerly the law. 2 Show. 247. 
 (as from the pointing of the printed (3) There is also an omission in 
 act would seem to be implied), or this part of the clause, in not con- 
 are meant to be connected with fining the seizure to the property 
 rtie matters previously enumerated, of the bankrupt; but this of course 
 namely, " any house, chamber, must necessarily be inferred.
 
 170 
 
 OF THE MESSENGER. 
 
 [Ch. 8. 
 
 Where 
 part of the 
 property is 
 in Ireland. 
 
 Where 
 the pro- 
 perty is 
 concealed. 
 
 Where 
 any pro- 
 perty is in 
 Scotland. 
 
 Inventory 
 of bank- 
 rupt's ef- 
 fects. 
 
 his necessary wearing apparel) in the custody or possession 
 of the bankrupt, or of any other person, in any prison or 
 place where the bankrupt is in custody. 
 
 If any of the bankrupt's property (1) is in Ireland^ the 
 messenger may in the same way seize the property there; 
 but the warrant in that case must be verified upon oath by 
 the solicitor under the commission, before the mayor or 
 other chief magistrate of the city or town where or near 
 to which the commission is executed, and be also verified 
 under the common seal, or the seal of office of such mayor 
 or magistrate; and the messenger must also depose upon 
 oath, before a justice of peace residing in the county where 
 the bankrupt's property shall be reputed to be, that he is 
 the person named in such warrant. 
 
 Where there is reason to suspect that property of the 
 bankrupt is concealed (2), the messenger may then obtain 
 a search-warrant from any justice of peace in England, or 
 Ireland, and may execute it in the same manner, and is 
 entitled to the same protection, as is allowed by law in the 
 execution of a search-warrant for stolen property. 
 
 If, in the execution of the commissioner's warrant, it 
 becomes necessary to have access to any house or place of 
 the bankrupt in Scotland {S\ the warrant, after being 
 verified upon oath as before mentioned, must be backed or 
 indorsed with the name of a judge ordinary or justice of 
 the peace in Scotland, which will be then sufficient autho- 
 rity to the messenger, and all officers of the law in Scot- 
 land, to execute it within the county or burgh wherein it is 
 so indorsed. 
 
 The messenger, when he seizes the bankrupt's property, 
 should make an inventory of every article, which the bank- 
 rupt ought, if possible, to see and acknowledge to be cor- 
 rect; and the inventory, with the articles contained in it, 
 must as soon as assignees are chosen be delivered up to 
 them. None of the property should be left in the banki- 
 
 (1) Section 28. 
 
 (2) Section 29. 
 
 (5) Section 50.
 
 Ch. 8.] OF THE MESSENGER. 171 
 
 rupt's power, — and care should be taken that no docu- 
 ment is lost. The usual way of securing the books and 
 papers is to put them into a bo;c, or some other safe place 
 of deposit, sealing it up with the messenger's seal, as well 
 as with that of the bankrupt, and thus to keep them until 
 assignees are chosen. 
 
 When the messenger has once taken possession of the After sei- 
 bankrupt's property, he should not quit possession upon ^"''^' ™^®' 
 the representation of any person claiming the property should not 
 
 as his own; for if he quits possession, there may be q"'t pos- 
 
 session 
 some difficulty in his resuming it ; as it is a question, 
 
 whether, after having once abandoned it, the warrant of 
 the commissioners is not spent. (1) Perhaps the safest 
 mode of proceeding, in such a case, would be to get a fresh 
 warrant from the commissioners ; since an attachment will 
 not be granted, under these circumstances, against a per- 
 son for refusing to permit the messenger to take a (2) 
 second possession. 
 
 As the messenger was formerly put to much expense Indemnity 
 
 and trouble, from actions beino- brought against him, for ^^ *^° ^^- 
 
 . . . . . tions. 
 
 the mere purpose of trying the validity of the commission, 
 
 a protection is now given to him, similar to that, which the 
 
 law alfoi'ds to constables in the execution of their duty. 
 
 He seizes the property of the bankrupt, indeed, at his ovvn 
 
 hazard ; but no action can be brought against him for any p^^ ^^ jg_ 
 
 thing done in obedience to the commissioners' warrant mand and 
 
 prior to the choice of assignees, unless a previous demand (3) jf,g ^^j_ 
 
 in writing is made by the party, or his attorney, of the rant. 
 
 perusal and copy of the warrant, nor unless the same hath 
 
 been refused or neglected for six days after being made. 
 
 And if, after compliance with such demand, any action be Petition- 
 
 brouffht against the messenger, without making the pe- \'?o ^re- 
 . . ^ ^ ,. 1 r 1 I 1 • c c ditor must 
 
 titionmg creditor a deiendant also, the jury, on prooi or ^g joined 
 
 such warrant at the trial, must give their verdict for the ^" ^he 
 
 action. 
 
 (1) Per Lord Eldon, Ex parte (2) Per Lord Eldon, Ex parte 
 Page, 1 Rose, 2. Page, 1 Rose, 2., and 1 7 Ves. 59. 
 
 (.3) Section 51.
 
 172 OF THE MESSENGER. [Ch. 8. 
 
 defendant, notwithstanding any defect of jurisdiction in the 
 commissioners. But, if the action be brought against the 
 petitioning creditor as well as the messenger, the jury, on 
 proof of the warrant, are equally bound to give their ver- 
 dict for the messenger; and if a verdict be given against 
 the petitioning creditor, the plaintiff may recover his costs 
 against him, so as to include the costs which such plaintiff 
 is liable to pay to the messenger. And proof in such an 
 action, that a defendant is the petitioning creditor, renders 
 him (1) liable to the same extent, as if the act complained 
 of in the action had been committed by the defendant. As 
 this protection, however, of the messenger is only given 
 to him, for acts done prior to the choice of assignees, he 
 should in all doubtful cases, when the action is brought 
 after the choice, secure himself by taking an indemnity 
 from the assignees. 
 Limitation The messenger is also within the section (2) of the statute, 
 
 of action, ^ijich provides for the limitation of actions a<i'ainst any 
 and dou- ^ , . , . <• i i r- 
 
 bJe costs, person, for any thmg done ni pursuance or the act, and tor 
 
 double costs in case the defendant succeeds in the action. 
 Obstruc- Besides the above protection afforded to the messenger 
 tion ot tlie jjy ^Q statute, any obstruction that he may meet with, 
 a con- ° in the execution of the warrant of the commissioners, is 
 tempt. considered a contempt of the Great Seal ; and the persons 
 so obstructing him will be liable to an attachment as for a 
 contempt, notwithstanding the messenger may have acted 
 under the immediate authority given by the statute, and 
 not under any previous order of the Court. (3) Any per- 
 son, also, who indemnifies another against the conse- 
 quences of turning a messenger out of possession of pro- 
 perty seized by him, is equally guilty of a contempt (4) ; 
 and it is no justification for resisting him, that the warrant 
 Where was illegal. (5) In one case, where the captain of a ship 
 
 captain of 
 
 (1) Section 32. (4) Ex parte Dixon, 8 Ves. 104. 
 
 (2) Section 44. ante, 132. (5) Ex parte Titner. Ex parte 
 
 (3) Ex parte Page, 1 Rose, 1. Page, ante. 
 Ex parte Titner, 1 Atk. 136. Ex 
 
 parte Dixon, 8 Ves. 104.
 
 Ch. 8.] OF THE MESSENGER. 173 
 
 turned the messenger out of possession of the bankrupt's a ship re- 
 goods, which were laden on board, and formed part of the ji"^i^ve^ 
 ship's cargo, the Lord Chancellor ordered, that he should goods, 
 give security for 'answering to the assignees, what interest 
 they could prove the bankrupt had in the cargo, at the time 
 the messenger took possession of it. (1) And, generally, 
 if the captain of a ship refuses to deliver up the bankrupt's 
 goods to the messenger, the Lord Chancellor will make an 
 order for the goods to be delivered, upon payment of 
 freight, and indemnifying the captain against the rights of 
 other persons. (2) But where goods have been seized by 
 a messenger as the property of the bankrupt, the Lord 
 Chancellor has in one case refused to order them to be 
 delivered up to a petitioner merely claiming them as his 
 own, the proper remedy being an action at law against the 
 messenger. (3) 
 
 Aprovisional assignment is often made of the bankrupt's Provisi- 
 estate to the messenger, in order to protect it against the gitrnment^ 
 process of the crown, and he is afterwards bound to execute 
 a re-assignment of it to the assignees chosen by the cre- 
 ditors. When the messenger died between the execution 
 of the provisional assignment, and the choice of assignees, 
 bis infant heir was held to be a trustee of the real estate of 
 the bankrupt, within the statute of Anne. (4) 
 
 The petitioning creditor is in the first instance personally Costs. 
 answerable to the messenger for his charges before the party 
 be declared a bankrupt (5), as well as for all his costs before 
 the choice of assignees ; but this liability is only for neces- 
 sary charges and expenses. Therefore, where a messenger Petition- 
 took an unnecessary and fruitless journey to the Isle of Man, ^jifor'^hen 
 without any authority from the petitioning creditor, it was liable. 
 held that he had no claim in this respect against the peti- 
 tioning creditor. (6) After assignees are chosen, they are then Assignees. 
 
 (1) Ex parte Dixon, 8 Ves. 104. (4) Ex parte Carter, 5 Mad. 81. 
 
 (2) MoUoy, 253. Eq. Ca. Ab. (5) Burwood v. Kant, 2 Carring. 
 98. &P. 123. 
 
 (3) ExparteCragg5, lRose,25., (6) Billings v. Waters, 1 Star, 
 but see ante, page 16. o6o.
 
 174 OF THE MESSENGEK. [Cll. 8. 
 
 liable to him for all his subsequent costs, — notwithstanding 
 even the commission is superseded, and they have not at- 
 tended any meeting of the commissioners, or received any 
 effects under the commission. (1) The assignees are also 
 presumed to know, that the messenger has a claim for the 
 payment of his bill out of the bankrupt's effects, and ought 
 therefore to reserve sufficient funds to satisfy it ; and it is no 
 objection to his claim against them, that he has neglected 
 Mode of to make his demand until after a final dividend. (2) The 
 recovering messenger is not obliged to bring an action for the recovery 
 of his fees, but is entitled to proceed, by the more summary 
 remedy of a petition to the Lord Chancellor. (3) 
 Solicitor Though the solicitor to the commission in general nomi- 
 
 not per- nates the messenger, and is the medium thjough which it 
 
 sonallv o ' o 
 
 liable to is convenient that the latter should receive his bill of fees, 
 
 messenger, ygj. j.}^jg ^j|j j^qj. make the solicitor personally liable to the 
 without a '^ . . . ^ . 
 
 special messenger. (4) But if the solicitor agree with the petition- 
 agree- jjjg creditor to work a commission for a sum certain, and 
 receive a great part of that sum, he will then be personally 
 liable to the messenger, as for money had and received (5), — 
 though the petitioning creditor, in such a case, will not be 
 exonerated from his liability to the messenger, without the 
 express consent of the messenger to discharge him. (6) 
 
 (1) Ibid. Ex parte Hartop, (4) Hartop v. Juckes, 2M. &S. 
 9Ves. 109. 438. Hart V. White, I Holt, 316. 
 
 (2) Ex parte Hartop, 1 Rose, (5) Hartop v. Juckes, supra; 
 449. and see Ex parte Hartop, 12 Ves. 
 
 (3)9Ves. 109. 1 Rose, 450. 349. 
 
 (6) Hart v. White, 1 Holt, 376.
 
 175 
 CHAP. IX. 
 
 OF THE PROOF OF DEBTS. 
 
 1. Of Debts in general, and herein of the Rights and Duties 
 generally of Creditors. 
 
 2. Of the Creditor's Election. 
 
 3. Time of Proof. 
 
 4. Marnier of Proof. 
 
 5. Of Judgment Creditors. 
 
 6. Of Creditors having a Mortgage or Equitable Lien. 
 
 7. Debts payable infutnro. 
 
 8. Contingent Debts. 
 
 9. Creditors by Marriage Articles. 
 
 10. Creditors of a Bankrupt Executor or Trustee^ andherein 
 of the Executors of a Creditor. 
 
 11. Creditors by Annuities. 
 
 12. Servants, Apprentices^ and Children, 
 
 13. Awards. 
 
 14. Bonds. 
 
 15. Bills of Exchange and Promissory Notes, and herein 
 
 of Cross Paper Demands. 
 
 16. Of Policies of Insui'ance* 
 
 17. Rent. 
 
 18. Interest. 
 
 19. Costs. 
 
 20. Damages. 
 
 21. Sureties. 
 
 ^2. Creditors by Composition^ 
 
 23. Friendly Society Act. 
 
 24. Rates and Taxes. 
 
 25. Debts illegal and void, 
 
 26. Of claimi7ig a Debt. 
 
 27. Of expunging a Proof. 
 
 (For the proof of Joint Debts, and proof between 
 Partners, see post, Chap. XVI.)
 
 176 OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Section I. 
 
 Of Debts in general, and herein of the Rights and Duties 
 generally of Creditors. 
 
 There are some general rules applicable to all cases of 
 
 the proof of debts under the commission, which should be 
 
 considered previously to admitting any creditor to prove. 
 
 The first consideration is, when the debt accrued, or was 
 
 contracted. Before the statute 46 G. 3. c. 135. s. 2. the 
 
 law was, that the debt must have accrued before the act of 
 
 bankruptcy, in order to enable the creditor to prove it ( 1 ) ; 
 
 a rule, which was often attended with inconvenience, and 
 
 Creditor not unfrequently productive of injustice. But by a pro- 
 
 mayprove, yi^^Q^i of that statute, which is incorporated in the ^Itk 
 
 notwith- -1 I 
 
 standing a sectioji of the new act, every person with whom any bank- 
 
 P"^'" ^^^ rupt shall have really and bo7id fide contracted any debt or 
 fuptcy. demand before the issuing of the commission, may, notwith- 
 standing any prior act of bankruptcy committed by the 
 bankrupt, be admitted to prove the same, provided he had 
 not, at the time it was contracted, notice of such act of 
 bankruptcy. The act of bankruptcy, meant in this 
 section, is the act of bankruptcy on which the commission (2) 
 is issued; for the object of the clause, like the former act of 
 the 46 G. 3., is to facilitate and give a greater capacity of 
 proving debts, and is in relief both of the creditor and 
 the bankrupt. Therefore if the debt is contracted before 
 the act of bankruptcy on which the commission is issued, 
 though after notice of a prior act of bankruptcy, it may 
 nevertheless be proved under the commission. (3) 
 
 (l) Bamford v. Burrell, 2 B. & (2) Ex parte Bowness, 2 M. St 
 P. 1. O'Brien v. Grierson, 2 Ball S. 479. 
 &B.334. (5l Ibid.
 
 Sect. 1.] OF THE PROOF OF DEBTS. 177 
 
 It is also no objection to the proof of a debt, (except in I>ebb and 
 
 the case of the petitioning creditor) that it was contracted ' 
 
 with the bankrupt after he left off trade. ( 1 ) But a debt 
 
 which is barred by the statute of limitations cannot be As to time 
 
 proved, although the bankrupt admit that he contracted tractinf^ 
 
 the debt and never paid it. (2) A debt, contracted by the Jebt. 
 
 bankrupt's wife before her coverture, may likewise be proved 
 
 under the commission against him ; for when a woman 
 
 marries, all her debts become, by the marriage, the debts 
 
 of her husband. (3) 
 
 "Whenever a debt is barred by the certificate, it is fwith What 
 
 . . ■ . ^ debts 
 
 only one or two exceptions, which will be noticed in a sub- provable 
 
 sequent chapter (4),) provable under the commission ; and 
 the converse of this proposition likewise holds true. (5) But 
 before a debt can be proved, it must either be actually 
 liquidated and ascertained, or capable of being so (6) ; and 
 it must also be contracted for a lawful consideration. (7) 
 
 Proof of a debt has been decided by the Vice-Chancellor How proof 
 to be equivalent to payment. (8) But this position appears °P^*'^'^^' 
 to have been doubted by Lord Eldon. (9) Proof of a 
 debt, however, is so far binding on the creditor, that if he 
 has a security or lien on any property of the bankrupt, and 
 proves for the whole debt, he will not be allowed afterwards 
 to withdraw his proof, and avail himself of his security or 
 lien, — but must deliver up the security, or property on 
 which he has a lien, for the general benefit of the credi- 
 tors. (10) 
 
 (1) Meggott V. Mills, 12 Mod. sWils, 262. Utterson v. Vernoji, 
 159. 1 Ld. Raym. 287. 5 T. R. 546. 
 
 (2) Ex parte Dewdnet/, 15 Ves. (7) See post, Sect. 25. " Ofllle- 
 479. Ex parte Seaman, Ibid. Ex gal and Void Debts." 
 
 parte Roffey, 2 Rose, 245. (8) Ex parte Watson, Buck. 456. 
 
 (5) Miles V. Williams, 1 P. Wms. Ex parte Smith, Ibid. 492. Ex 
 
 249. parte Hornby, Ibid. 551. 
 
 (4) Vide post. " Of the Effect (9) Ex parte Hunter,Bnck. 556. 
 of the Certificate." (10) Ex parte Dowries, 18 Ves. 
 
 (5) 1 Atk, 119. Barnfordw.Biir- 290. 1 Rose, 96. Ex parte Solo' 
 rell, 2 B. & V. 1 1. man, 1 G. & J. 25. 
 
 (6j Goddard v. Vatidcrhei/den, 
 
 N
 
 178 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch.9. 
 
 Debts and 
 creditors. 
 
 Penalty on 
 a creditor 
 receiving 
 more from 
 the bank- 
 rupt, than 
 the other 
 creditors. 
 
 Creditors 
 must come 
 in upon 
 equal 
 terms, 
 
 notwith- 
 standing 
 they have 
 securities. 
 
 Excep- 
 tions. 
 
 Mode of 
 proof as to 
 creditors 
 holding 
 securities. 
 
 Joint 
 securities. 
 
 By Section 8. of the new statute, if any creditor, after a 
 docket struck against a bankrupt, receives from liim any 
 money, gift, satisfaction, or security for his debt, or any 
 part of it, whereby the creditor may receive more in the 
 pound in respect of his debt than the other creditors, he 
 thereby forfeits his wliole debt, and is also compellable to 
 deliver up such money, &c. or the full value thereof, to 
 such person as the commissioners shall appoint. 
 
 The aim of the legislature, therefore, being that the 
 creditors should have an equal proportion of the bank- 
 rupt's effects, creditors of every description must come in 
 upon equal terms ; nor will the nature of thei • demands 
 make any difference, unless they have obtained actual exe- 
 cution against the bankrupt, or have taken some pledge or 
 security from him, more than two calendar months before 
 the date and issuing of the commission. (1) The 108th 
 section of the new statute accordingly declares, that no 
 creditor having security for his debt, or having made any 
 attachment in London or any other place by virtue of any 
 custom there used, of the goods and chattels of the bank- 
 rupt, shall receive upon any such security or attachment 
 more than a rateable part of such debt, except in respect 
 of any execution or extent served and levied by seizure 
 upon, or any mortgage of, or lien upon, any part of the 
 property of the bankrupt before the bankruptcy. (2) 
 
 When a creditor comes to prove his debt, he is 
 obliged to swear, whether he has a security for it or 
 not; and if he has, and insists upon proving, he must 
 either deliver it up for the benefit of the creditors (3), or 
 have the value previously ascertained by the sale of it. (4) 
 If it be, however, a joint security from the bankrupt and 
 another person, he may then come in for his whole debt 
 under the commission, without being compelled to deliver 
 
 (i) Section 81. 
 
 (2) And see post, as to judg- 
 ment creditors. 
 
 (3) Ex parte Grove, 1 Atk. 105. 
 
 (4) Ex parte Smithy 2 Rose, 64.
 
 Sect. 1.] OF THE PROOF OF DEBTS. 1 79 
 
 up the joint security (1) ; and he is in that case entitled to Debts and 
 take his dividend upon the whole of his demand from the ^ ^^^^^"'^ - 
 bankrupt's estate, and to recover what he can from the co- 
 surety, provided he does not receive more than 20^. in the 
 pound in the whole. And the same rule holds, where the Separate 
 creditor has a distinct security from a third person for the ^^'^""''^^ 
 same debt; for the deduction of such a security is never persons, 
 made from the claim of the creditor, unless it is pledged 
 with the creditor as the property of the bankrupt. (2) It Exhibit. 
 should, however, be produced at the time of proving the 
 debt, in order that the commissioners may mark it as 
 having been exhibited. If a creditor, holding the bank- 
 rupt's acceptance, proves his debt without stating that 
 fact to the commissioners, and there are circumstances 
 of suspicion, which make it fit that the assignees should 
 again have an opportunity fully to examine into the debt, 
 the proof will be ordered to be expunged — giving him 
 liberty, however, to go again before the commissioners 
 and tender his proof. (3) 
 
 Where the creditor thinks, that a security pledged with Wlien 
 him by the bankrupt is not of equal value with the debt, j^^y ^J 
 he may apply to have it sold, and be admitted as a creditor sold, and 
 for the residue; and it makes no difference in this respect, ^[^j ^ 
 whether the security is a real or personal one ; for all per- the dif- 
 sonal securities, such as bonds and bills of exchange, may '^'"^"c^- 
 be directed to be sold in the same manner as an estate. (4') 
 And if the security is really of less value than the debt. When 
 and the creditor is desirous of voting in the choice of ^'"■^u^ 
 assignees, the Court will sometimes permit him to prove giving up 
 without giving up the security ; but then the value of the ^^'^""'^y* 
 security or pledge must be deducted, and he can only 
 prove for the difference ; and the Court will impose such 
 terms upon him, as that justice may be done to the 
 
 (1) Ex parte Bennet, 2 Atk. 528. (3) Ex parte Hossack, Buck. 390. 
 
 (2) Ex parte Parr, 1 Rose, 76. (4) Ex parte Hiltier, 1 C. B. L, 
 Ex parte Goodman, 5 Madd. 573. 158.; and see post. 
 
 N 2
 
 180 
 
 OF THE rnOOF OF DEBTS. 
 
 [Ch. 9. 
 
 Debts and 
 
 creditors. 
 
 When 
 proof of 
 the ba- 
 lance of a 
 debt 
 
 should not 
 be re- 
 jected. 
 
 estate. (1) Where the security consists of bills, if the cre- 
 ditor is willing to take them at their value on the face of 
 them, the estate in that case cannot be damnified, as they 
 may produce less, but cannot produce more ; and his proof 
 must, of course, be admitted for the difference. (2) And 
 the same rule applies, where the value of the security is ad- 
 mitted by all parties (3) ; but if, in this case, the sale of the 
 security produces more than the value put upon it, the 
 surplus must be carried to the estate, and not applied in 
 reduction of the creditor's proof. (4) And though the right 
 to retain the security is disputed, yet, if the value of it 
 bears a very small proportion to the amount of the debt, 
 the creditor will be allowed to prove for the difference, 
 upon giving security to deliver up the property, if it should 
 turn out that he is not by law entitled to retain it. (5) But 
 where the creditor holds property under what was clearly a 
 l^reference^ such an order will not be made. (6) 
 
 The proof of the balance of a debt, which must at all 
 events be due, is not to be rejected or deferred, because 
 there is a question (as to the legality of a part payment of 
 it) to be tried between the bankrupt's estate and the cre- 
 ditor, which the assignees in their discretion may, or may 
 not, put into a course of trial — but which the creditor can- 
 not himself initiate; though it is proper that no divi- 
 
 (1) 2Jac. & W. 221. Ex parte 
 Nunn, 1 Rose, 322. Ex parte 
 Greenwood, Buck. 325. 
 
 (2) Ex parte Martell, 1 Rose, 
 329. Per Lord Eldon, 
 
 (3) Ex parte Nunn, Ibid. 322. 
 
 (4) Ibid. 
 
 (5) Ex parte De Tastet, 1 Rose, 
 324. ; and see Ex parte Smith, 
 2 Rose, 65. The order in Ex parte 
 De Tastet was, that the creditor 
 should give security to deliver up 
 the property, if the commissioners 
 should be ofojnnion, that he was not 
 entitled to retain it; and that the 
 creditor should not reverse their 
 adjudication, by an application af- 
 
 terwards to the Lord Chancellor. 
 The reasonableness of imposing 
 these terms, however, seems to be 
 very questionable; for in a com- 
 plicated case of law and fact, it is 
 somewhat hard to tie the creditor 
 down to the decision of such a 
 tribunal as commissioners of bank- 
 rupt, without any appeal from their 
 decision to the Lord Chancellor, 
 or without, at least, permitting him 
 to take the opinion of a judge and 
 
 ju'T- 
 
 (6) Ex parte Barclay, 1 G. & J. 
 272. Ex parte Smith, 5 Bro. 46.; 
 and see post. Section 6.
 
 Sect. 1.] OF THE PROOF OF DEBTS. 
 
 181 
 
 dend should be paid on that proof, till the question is Debts and 
 determined. ( 1 ) creditors. 
 
 A creditor, who has not proved, is not entided to ex- Disability 
 
 amine the petitioning creditor before the commissioners (3) ^^ "?' 
 TTTi T 1- 1 , , ^ provnii^. 
 
 When a creditor applies to prove, though he is not Creditor 
 
 bound to criminate himself, he is nevertheless bound to bound to 
 answer all the lawful enquiries of the commissioners, re- ^"^^^f^^*^ 
 specting his claim upon the bankrupt. (3) Therefore, sioner's 
 where a creditor was charged by the bankrupt with the '^"1"'"^°- 
 receipt of several sums of money, — and refused, upon his 
 examination before the commissioners, any disclosure as to 
 the receipt and application of them, the Lord Chancellor 
 would not allow him to prove his debt under the commis- 
 sion, — as it was necessary that he should, in the first 
 place, discharge himself of the sums of money traced to 
 his hands. (4-) 
 
 A speciaUi/ creditor has the same right under the bank- Right of 
 ruptcy of the /leir of his debtor, as if the heir had not ^F'jl^'ty 
 become bankrupt ; and may, therefore, follow the real against a 
 assets of his debtor, or their specific produce, in the hands bankrupt 
 of the assignees. (5) 
 
 A creditor, who proves his debt, is not thereby estopped ^^ to 
 from disputing the validity of the commission in an action pro^'t'^^ ^ 
 at law, or from applying to have it superseded. (6) 
 
 Creditors, who come in under the commission, are liable But liable 
 to contribute, in proportion to the amount of their debts, ,*° contn- 
 to all the lawful expences of the assignees in recoverino- 
 the bankrupt's property; and there is no difference, in this 
 respect, between creditors who prove by affidavit, and those 
 who prove in person. (7) But no creditor, being out of 
 England, and proving by affidavit, is liable to pay any 
 contribution on account of his debt. (8) 
 
 (1) FiX parte Ackroi/d, iG. &J. (6) Stewart v. Richnan, 1 Esp. 
 591, 108. Ex parte ^o?25or, 2 Rose, 61. 
 
 (2) Ex parte Steele, 16 Ves. 161. (7) Ex parte Lcivthwaite, 16 Ves. 
 
 (3) Section 46. 234. 
 
 (4) Ex parte Symes, 11 Ves. 521. (8) Section 46. 
 
 (5) Ex parte Morton, 5 Ves. 449. 
 
 N 3
 
 182 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Debts and 
 creditors. 
 
 Creditor 
 may ap- 
 peal to the 
 Lord 
 Chan- 
 cellor. 
 
 Punish- 
 ment for 
 perjury. 
 
 The new 
 statute to 
 be con- 
 strued fa- 
 vourably 
 for cre- 
 ditors. 
 
 As an appeal lies to the Lord Chancellor, on petition, 
 from every determination of the commissioners, — if a cre- 
 ditor, therefore, upon his proof being rejected by them, 
 considers himself aggrieved, his proper course is to petition 
 the Chancellor to be admitted to prove. (1) But he can- 
 not petition to prove a larger debt, than what he offered to 
 prove before the commissioners. (2) Under special cir- 
 cumstances, however, a creditor may petition to prove in 
 the first instance, without tendering his proof previously to 
 the commissioners (3); though such an application should 
 not in general be made, until the commissioners have re- 
 jected the proof. (4-) If the commissioners also have 
 improperly admitted proof of a debt, redress must be 
 sought by the assignees, by petition, and not by bill. (5) 
 
 If any creditor, or other person, wilfully and corruptly 
 swears falsely (6) in any deposition or affidavit, or (being a 
 Quaker) makes a false affirmation, he is liable to be pro- 
 secuted for perjury. 
 
 The present statute declares, that it is to be construed 
 beneficially for creditors (7), in conformity with an opinion 
 formerly expressed by Lord Mansfield, as to the interpret- 
 ation of the former bankrupt laws ; namely, that they 
 should receive a construction favourable for creditors, and 
 the suppression of fraud. 
 
 (1) Clarke v. Capron, 2 Ves. 666. 
 
 (2) Ex parte Fry, 3 Mad. 152. 
 
 (3) Ex parte Moody, 2 Rose, 
 414. Ex parte Smith, 1 G. & J. 74. 
 
 (4) Ex parte De Tastet, 1 V. & 
 B. 280. 
 
 (5) C.B.L. 130. 
 
 (6) Section 94. Formerly, be- 
 
 sides the punishment for peijury, 
 he was liable to pay double the 
 sum sworn to, or affirmed to be 
 due, to be divided amongst the 
 bankrupt's creditors. See 5G. 2. 
 c. 30. s. 29. Holmes v. Walsh, 7 T. 
 R.458. 
 
 (7) 1 Burr. 4 74.
 
 Sect. 2.] OF THE PROOF OF DEBTS. 183 
 
 Section II. 
 
 Of the Creditor's Election to sue the Baiikrujpt, or to 'pro've 
 his Debt. 
 
 A creditor, by proving his debt under the commission, Former 
 was not formerly conckided to have made an absolute P''^'^*^''^^- 
 election, not to proceed at law against the bankrupt; 
 "though the Lord Chancellor would, on application, put 
 him to his election, either to come in under the commis- 
 sion, or to proceed with his action. Some refined dis- 
 tinctions, too, appear to have been drawn in the different 
 cases (which are somewhat at variance with each other), 
 as to the particular period of putting him to his election — 
 whether before, or after, a dividend was declared — or whe- 
 ther there should not, at the least, be funds in the hands of 
 the assignees sufficient to make a dividend. (1) If the 
 creditor elected to proceed with his action, he was still 
 allowed to prove his debt, for the purpose of assenting to, 
 or dissenting from, the certificate ; as the certificate would, 
 of course, operate to the discharge of the bankrupt from 
 that action, as well as all his debts contracted before the 
 act of bankruptcy. (2) A petitioning creditor, however, Petition- 
 was always held to have determined his election ; for if he ^^"= ^'^^' 
 had been permitted to proceed at law, after taking out the 
 commission, the commission itself must have been super- 
 seded, — which would have affected all the creditors who 
 had proved debts under it. (3) 
 
 But now, by Section 59. of the new act, (which adopts Creditor 
 
 the provisions of the 49 Geo. 3. c. 121. s. 14.) any creditor, "'"'^ "9^ 
 
 ^ ..,.., relinquish 
 
 who has brought an action, or instituted a suit, agamst the an action, 
 
 bankrupt, in respect of a demand prior to the bankruptcy, before 
 
 (1) C.B.L. 134. Ex parte Ward, Ibid, 155. Ex 
 
 (2) Ex parte Dorvilliers, 1 Atk. parte Crlnsox, 1 Bro. 270.; and see 
 221. Ex parte Lmdsai/, Ibid. 220. 1 Mont. Dig. 70. 2 Clirist. B. L. 
 Ex parte t'apoit, Ibid. 219. 481. 8 T. 11. 344. 3Ves. 1. 1 V. 
 
 (3) Ex parte Wilson, 1 Atk. 152, & B. 315. 
 
 II 4
 
 184> 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Election. 
 
 Proof 
 deemed an 
 election. 
 
 Where the 
 action a 
 joint one. 
 
 Where 
 commis- 
 sion super- 
 seded, cre- 
 ditor not 
 to be pre- 
 judiced. 
 
 Two cases 
 of proof. 
 
 Where 
 
 action 
 
 brought 
 
 before, and 
 
 after 
 
 proof. 
 
 or which might have been proved as a debt under the 
 commission, is not permitted to prove, or to have any 
 claim entered upon the proceedings, unless he relinquishes 
 the action or suit, (l') And in case the bankrupt is de- 
 tained in prison at the suit of such creditor, the latter 
 must then give a sufficient authority in writing for his dis- 
 charge. The proving, or claiming, a debt under the com- 
 mission, is also deemed an election by the creditor, to take 
 the benefit of the commission with respect to the debt so 
 proved, or claimed. The creditor, however, is protected 
 from any liability to pay the costs of the action or suit so re- 
 linquished, either to the bankrupt, or his assignees. Where 
 the action is a Johit one against the bankrupt and another 
 person, the relinquishment of it against the bankrupt will 
 not affect the action, as to such other person. If the com- 
 mission should be afterwards superseded, the creditor may 
 then proceed in the action against the bankrupt, as if 
 he had not elected (2) — and, if the action was a bailable 
 one, may arrest the defendant de ?2ovo, if he has not put 
 in or perfected bail, — and if bail has been put in or per 
 fected, he may then proceed against the bail. 
 
 This section embraces, though it does not expressly 
 provide for, two distinct cases of proof, — the one, where an 
 ACTION has been brought before the debt is proved, — and 
 the other, where the debt is proved ■previously to the com- 
 mencement of any action. With respect to \\\Q.Jirst case, 
 viz. where the action is brought before the proof, the words 
 of the statute are very general, and seem to amount to 
 an absolute prohibition from proving any debt, without 
 relinquishing the action pending, whether brought in re- 
 
 (1) It was the practice, however, 
 of the commissioners for some time 
 before the 49 G. 3. c. 121. to insist 
 upon this relinquishment on the 
 part of the creditor. Ex parte 
 BotteriU, 1 Atk. 109. 1 C. B. L. 
 150. Ex parte Wilkinson, 1 Atk. 
 8.5. ; and see Ex parte WooUetj, 
 infra. 
 
 (2) Before this provision in the 
 statute, if the creditor had the 
 bankrupt in execution, and had 
 elected to come in under the com- 
 mission, he could not retake him, 
 if the commission was afterwards 
 superseded.
 
 Sect. 2.^ OF THE PROOF OF DEBTS. 185 
 
 spect of the debt offered to be proved, or of any other. Election. 
 As to the other case of proof, viz. where the action is 
 brought after the proof of the debt, the enactment 
 amounts only to a declaration of the legal effect of such 
 proof or claim, — which is confined to the debt so proved 
 or claimed. 
 
 Where a creditor, therefore, has two distinct demands Where 
 against the bankrupt, for one of which he brings an action \ % action 
 
 o ^ I ' o bejorc 
 
 against him before the bankruptcy, and then proves the other proof. 
 
 under the commission, the proof of this debt is an election ^^^ition 
 
 • p 1 1 1 • ^° prove 
 
 to relinquish the action for the other, and to come m as a ere- an elec- 
 
 ditor for both debts under the commission. (l) And where *''^"- 
 the creditor, instead of proving, presents merely a petition 
 to be admitted to prove one of his demands, he is equally 
 estopped from continuing his proceedings at law against 
 the bankrupt for the other (2); for the presentation of such 
 a petition is as much a pledge to prove, as entering a claim 
 would be, and operates in itself as an election to come in 
 under the commission. (3) So, where a creditor obtained So obtain- 
 an order for an enquiry before the commissioners, and order- 
 before the order was drawn up took out execution upon 
 a judgment then pending against the bankrupt, the Lord 
 Chancellor ordered the goods to be restored, and put in 
 the same situation as they were at the time of the order, — 
 declaring, that a creditor obtaining an order at his own in- 
 stance should not be suffered to take out execution, with- 
 out first applying to set that order aside, or procuring the 
 leave of the Court, ("t) So, if one creditor accepts an or an as- 
 assignment from another of a debt proved, he is substan- ^^^^ ^^^^ 
 
 (l) Ex parte Dickson, 1 Rose,98. both. Ex parte Crinsoz, 1 Bro.270. 
 
 Before the 49 G. 3. c. 1 21., where a Ex parte Botteril, 1 Atk. 109. Ex 
 
 creditor had two demands against parte Mathews, 5 Atk. 817. 
 
 the bankrupt of a different nature, (2) Ex parte Hardevburgh, 
 
 he might prove one under the 1 Rose, 204. 
 
 commission, without relinquishing (s) Ex parte Blaifdes, 1 G. & J. 
 
 an action pending for the other; 179. Ex parte /mng, Buck, 425. 
 
 and his election to come in under Ex parte Lord, Ibid, 
 
 the com.mission as to one debt, did (4) Ex parte Bozannct, 1 Rose, 
 
 not compel him to make it as to 181.
 
 186 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Election. 
 
 already 
 proved. 
 
 Creditor 
 issuing ex- 
 ecution 
 upon a 
 verdict 
 subject to 
 an award. 
 
 Joint and 
 
 separate 
 
 creditor 
 
 having 
 
 issued 
 
 execution. 
 
 Execution 
 before 
 bank- 
 ruptcj'. 
 
 Where 
 
 action 
 
 brought 
 
 tially a creditor proving himself under the commission, 
 and thereby reh'nquishes an action previously brought 
 against the bankrupt for his own debt. (1) 
 
 Where a creditor of the bankrupt, previous to the com- 
 mission, obtained a verdict against him for a nominal sum, 
 in an action for money had and received, subject to a 
 reference, — and after the award was made (which was sub- 
 sequent to the commission) entered up judgment for the 
 debt and costs, and then proved the debt under the com- 
 mission, and afterwards took the bankrupt in execution for 
 the costs, — the Lord Chancellor ordered him to be dis- 
 charged,- — and that the creditor should pay the costs, unless 
 he could produce an affidavit, that the commissioners had 
 stated to him, that he had a right to seize the person 
 of the bankrupt. (2) It has been holden, however, that 
 where a scj^arate commission issued against one of a 
 firm, and a joint and separate creditor had taken out 
 execution against the bankrupt for his joiyit debt, he was 
 still entided to prove his separate debt, without giving up 
 his execution. (3) And where a creditor before the bank- 
 ruptcy seized the effects of the bankrupt under an exe- 
 cution — though the goods were not sold till after the 
 commission issued — yet the creditor was allowed to retain 
 his execution, and prove for the residue of his debt; for the 
 above clause of the statute was held not to apply to a case 
 of this nature. (4) But if the validity of such execution is 
 disputed, and the goods are not turned into money, he will 
 not then be permitted to have a value set upon the goods, 
 and to prove for the residue of his debt, in order to vote in 
 the choice of assignees. (5) 
 
 But where an action for one of two distinct debts is 
 brought ajlcr the proof of the other, the creditor in this 
 
 (1) Ex parte Taylor, 1 G. & J. (4) Ex parte Hopley, 1 G. & J. 
 399. 63. S. C. 2 Jac. & W. 220. ; and 
 
 (2) Ex parte Haynes, 1 G. & J. see /Section 108. 
 
 107. (5) Ex parte Hopley, 1 Jac. & 
 
 (3) Ex parte Stanborough, 5 Mad. W. 423. 
 89.
 
 Sect. 2.] OF THE PROOF OF DEBTS. 187 
 
 case is not deprived of his right of action ; for the words Election. 
 of the statute do not make the provin<y or claiminfj a debt Z, 
 
 I o ft after 
 
 an election, with respect to separate and distinct debts, — proof, 
 but only " with respect to the debt so proved or claimed," 
 and also with respect to any action then pending. Thus 
 the holder of two bills of exchange may prove for the one, 
 and afterrmr'ds sue the bankrupt on the other, notwith- 
 standing the bills were given by the bankrupt for debts of 
 the same nature, namely, for goods sold by the creditor to 
 the bankrupt. (1) The Lord Chancellor will, however, 
 under circumstances that justify his interference in such 
 a case, order that the creditor shall be restrained from suing 
 the bankrupt on the other bill. (2) 
 
 A creditor, who proves under a second commission — Proof 
 11,,-,, , , . . , under a 
 
 though the bankrupts estate under tliat commission does second 
 
 not pay 155. in the pound, and he afterwards acquires commis- 
 future effects — has been held, nevertheless, to have made 
 his election not to proceed against the bankrupt at law, 
 in respect of such future effects. (3) 
 
 But the above provision in the statute, as to the proof Proof does 
 or claim of a debt determining the creditor's election, only |^^|J^ ^^^ 
 applies to the creditor so proving or claiming, or entitled third per- 
 to the benefit of any proof or claim, and will not affect *°"^' 
 the rights or the liability of a third person. Therefore, as a surety, 
 proof by the creditor will not prevent the surety from 
 suing the bankrupt, unless, indeed, the surety is estopped (4) 
 by his own act, or by the bankrupt having obtained his 
 certificate. (5) Neither will it affect the claims of the cre- 
 ditor against the surety of the bankrupt; for the legislature 
 considers the proof against the principal as a benefit to the 
 
 surety. (6) So, if the holder of a bill of exchange proves or a partj 
 
 on a bill 
 
 (1) TJarley v. Greenvjood, 5 R. (4) Townend v. Do2vni?ig, 
 & A. 95. Ex parte Glover, 1 G. 14 East, 565. Ex parte Lobbon, 
 & J. 270. Howell v. Golledge, 17 Ves. 534.; and see post. " Sure- 
 5 Taunt. 174. ties." 
 
 (2) Ex parte Lobbon, 1 7 Ves. 334. (5) Vansandanv. Crosbie, 8 Taunt. 
 
 (3) Read v. Soiverby, 5 M. & S. 550. 2 Moore, 602. 
 
 78. (6) Ex parte Hughes, 5 B. & A. 
 
 484.
 
 188 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Election. 
 
 of ex- 
 change. 
 
 Proof does 
 
 not affect 
 
 remedy 
 
 against 
 
 other 
 
 persons 
 
 jointly 
 
 liable. 
 
 No rule 
 to discon- 
 tinue ne- 
 cessary be- 
 fore proof. 
 
 it under a commission against the acceptor, and the drawer 
 afterwards pays the amount to the holder, the proof of the 
 holder under the commission will not be considered an 
 election binding upon the drawer, so as to preclude him 
 from bringing an action on the bill against the ac- 
 ceptor. ( 1 ) 
 
 A creditor, also, is not prevented by proof of his debt, 
 from suing any other person jointly liable with the bank- 
 rupt; therefore, proving a joint debt under a separate 
 commission against one partner, will not prevent the cre- 
 ditor from suing the other partners (2) of the bankrupt. 
 And where separate commissions were issued against three 
 of four partners, and a joint creditor, under an order of 
 the Lord Chancellor, proved his debt under one of the 
 commissions, and afterwards sued all the partners for the 
 same debt, and arrested one of the other two, under whose 
 commissions he had not proved, — it was held, that there 
 was no objection to this proceeding, as the proof against 
 the estate of o;^^ was not an election as to the estate of the 
 otJiers. (3) And in every case of this kind, if the rules of 
 pleading require it, the creditor may make the bankrupt a 
 co-defendant, upon indemnifying him against the conse- 
 quences of his being made a party to the action. (4) But 
 though the Lord Chancellor will order such an indemnity 
 to be given, or else that the bankrupt's name shall be struck 
 out of the action, — yet a court of law will not grant the 
 bankrupt this relief, but leave him to plead his bank- 
 ruptcy. (5) 
 
 As the proof or claim by the creditor operates, of itself, 
 as a discontinuance of any action previously brought 
 against the bankrupt, it is not necessary for the creditor to 
 produce any rule of discontinuance in the action, in order 
 to entitle him to prove ; and, indeed, that proceeding might 
 
 (1) Mead v. Braliam, 3 M. & S. 
 
 91. 
 
 (2) Heath v. Hall, 4 Taunt. 326. 
 
 (3) Yoimgy. Glass, 16 East, 252. 
 
 (4) Ex parte Read, 1 Rose, 460. 
 1 V. & B. 346. 
 
 (5) iRose, 461. note (a).
 
 Sect. 2.] OF THE PROOF OF DEBTS. 189 
 
 be detrimental to his rights against the bankrupt, as there Election. 
 is an uncertainty, whether his proof will be admitted or 
 not. (1) And when the bankrupt is in actual custody at When 
 the suit of the creditor, the latter is entitled to the judg- in actual 
 ment of the commissioners upon his right to prove or custody. 
 claim, before he discharges the bankrupt ; though the 
 bankrupt must be actually discharged, and the action and 
 all benefit from it relinquished, before the proof or claim is 
 admitted on the proceedings. (2) The new act, we have 
 seen (3), provides, that the creditor in such a case must, 
 before proving, give a written authority for the discharge 
 of the bankrupt, — which will now save the bankrupt 
 the trouble and expence of applying to the Lord Chan- 
 cellor, or to the court in which the action is pending, in 
 order to be discharged. When the creditor has been Proof may 
 
 permitted to prove, the bankrupt is entitled to have some entered 
 ^ . Til 1 °" record, 
 
 entry or suggestion recordmg the election, put on the 
 
 record in the court, where the action was brought. (4) 
 
 The proof of the debt, however, does not operate so as to but cannot 
 
 enable the bankrupt to plead it in bar to an action, — but Repleaded. 
 
 only gives him an opportunity of applying for relief to 
 
 the Lord Chancellor, or to the Court where the action is 
 
 brought, to stay proceedings in the action. (5) 
 
 The being cJiosen an assignee merely of the estate of a Being cho- 
 
 bankrupt, will not prevent a creditor from suing the bank- l^" ^" ^^" 
 
 . . sio'nee 
 
 rupt at law, provided he has not proved his debt. (6) not an 
 
 When a creditor has proved under the commission estoppel, 
 pending an action against the bankrupt, the Bail will, of P*"°°f ^^^' 
 course, be discharged, as well as the bankrupt, from the bail, 
 consequences of the action, unless the commission is super- 
 seded; and in that case the statute provides (7), that the 
 creditor maj' proceed against the bail. For, in order to 
 
 (1) Ex parte Woolley, 1 Rose, (4) Kemp v. Potter, 6 Taunt. 
 394. iV. &B.253. 549. 
 
 (2) Ex parte Frith, 1 G. & J. (5) Harley v. Greenwood, 5 B. 
 165. . & A. 95. 
 
 (3) Ante, 184. (6) Ex parte Ward, I Atk. 152. 
 
 (7) Section 59.
 
 ido 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Election. 
 
 Petition- 
 ing cre- 
 ditor con- 
 cluded by 
 the com- 
 mission. 
 
 Where 
 creditor 
 takes the 
 body in 
 execution, 
 after the 
 commis- 
 sion. 
 
 proceed against the bail after judgment, it is necessary to 
 take out a capias ad satisjaciendnm against the principal, 
 as they are only liable, in case the defendant cannot be 
 taken upon that writ. And the ca. sa., being process in the 
 action, (which the creditor is obliged to relinquish upon 
 proving his debt) becomes after such proof, nothing but a 
 mere piece of waste paper; and the bail are consequently 
 not answerable for the appearance of their principal at the 
 return of the writ, and are incapable of being fixed. (1) 
 
 A petitioning creditor, it has been already observed, is 
 alwavs considered to have made his election not to sue the 
 bankrupt at lav/ (2); and though the commission be not 
 opened, yet if it is capable of prosecution, he is equally 
 bound. (3) He need not, however, relinquish his action 
 before he petiiions for the commission, the statute only ap- 
 plying to proof, or claim (4') ; but he must do so, of course, 
 before he proves at the opening of the commission. (5) 
 
 Where a creditor, after a commission is sued out, takes 
 the body of the bankrupt in execution, it is a conclusive 
 election; and he will not be entitled to prove, so as to re- 
 ceive a dividend, although he should afterwards discharge 
 the bankrupt out of custody. For the taking the body of 
 a defendant in execution is considered, in law, a satisfaction 
 of the debt (6) ; and though he discharges his person after- 
 wards, he cannot resort to the debtor's effects. (7) And 
 even in the case of an agent, who without the authority or 
 knowledge of his principal (who was abroad) took the 
 bankrupt in execution after the issuing of the commission, 
 this was held to be an (8) election by the principal. But 
 
 (1) Linging v. Comyn, 2 Taunt. 
 246. Aylett v. Harford, 2 Bl. 1317. 
 
 (2) Ante, 183. 
 
 (3) Ex parte Prowse, 1 G. & J. 
 02. 
 
 (4) Bri/antv. Withers, 2Koie,8. 
 {5) 2 Christ. B.L. 485. 
 
 (6) Ex parte Hicklin, C. B. L. 
 131. Ex parte Warder, Ibid. 132. 
 Ex parte Caton. Ex parte Rattray, 
 Ibid. Ex parte Knowell, 13 Ves. 
 192. 
 
 (7) Ex parte Billon, C.B. L. 135. 
 Ex parte Hewitt, Ibid. 
 
 (8) C. B.L. 152.
 
 Sect. 2.] OF THE PROOF OF DEBTS. 191 
 
 the taking a bankrupt in execution will not deprive the Election. 
 creditor of his right to prove, for the purpose of dissenting 
 from the certificate; for if the bankrupt obtain his cer- 
 tificate, he will then be discharged at once from the 
 execution. (1) 
 
 But where a writ of ca. sa. is lodged with the sheriff for Where de- 
 the purpose merely of fixing the bail, and the bankrupt surrenders 
 surrenders in discharge of his bail, but is never actually in dis- 
 charged in execution by the creditor, — in this case, the j^j^ j^'^jj 
 creditor's election is not determined. For the surrender 
 of a defendant in discharge of his bail is his own voluntary 
 act, and does not amount to charging him in execution by 
 the creditor : but if he be not discharged by the creditor 
 before the expiration of two terms, then the case will 
 be (2) different. And the mere issuing of a ca. sa., if 
 the defendant be not taken under it, is not enough to de- 
 termine the creditor's election. (3) So, if the creditor When 
 has taken the bankrupt in execution before the issuing of takinff 
 the commission, the creditor, in that case, is not concluded, bankrupt 
 but has his election, either to continue him in execution, ^j^^ before 
 or to come in under the commission (4) ; for there can be commis- 
 no election as to proof, where there is no commission. ^'°"'i" jgd 
 But when a creditor has taken his debtor in execution, he 
 cannot be a petitioning creditor. (5) An attachment of When 
 the bankrupt after the commission is issued, for nonpay- '^g^t foj. 
 raent of money hito court, under an order in a suit insti- not paying 
 tuted against him befoj-e the commission issued, is not Coz"-1^does 
 considered a proceeding against his person in satisfaction not con- 
 of the debt, — and, therefore, not such an election, as will "'iVr^ 
 prevent the creditor from proving. What might have 
 been the effect of attaching the defendant, if the order had 
 
 (1) Ex parte Chadwick, C. B.L. (3) Ibid. 
 
 135. Ex parte Hopkinson, 1 Ves. (4) Ex parte HicMin, supra. Ex 
 
 " 159. parte Du Paz, C. B. L. 134. 
 
 (2) Exparte C?mrfa//, 6 Ves.446. (5) Burnaby's cvae, 1 Str. 655. 
 Ex parte Arundel, 1 Rose, 143. 
 
 18 Ves. 231.
 
 X9Si 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Election. 
 
 Landlord 
 cannot dis- 
 train after 
 proof". 
 
 been to pay the money to the party himself^ Lord Eldon 
 would not detei'mine.(l) 
 
 A landlord, formerly, when he distrained and proved 
 also for the amount of his rent, was put to his election to 
 waive his proof, or his distress. (2) But now, it should 
 seem, when he has once proved the amount under a com- 
 mission, he cannot, consistently with the provision of the 
 statute, distrain for it afterwards ; — for the statute says, 
 that the proof by any creditor shall be deemed an election, 
 with respect to the debt so proved. 
 
 As to the election of a joint creditor suing out a separate 
 commission to prove against the Joint, or separate, estate, — 
 see post, title " Partners." 
 
 Special 
 meeting. 
 
 Creditor 
 may prove 
 at any 
 time 
 before a 
 final 
 dividend. 
 
 Section III. 
 Time of Proof. 
 
 A creditor may prove his debt at any of the three public 
 meetings of the commissioners, — (which, we have seen, are 
 appointed by them when they declare the party bankrupt) 
 as well as at any other public meeting to declare a dividend, 
 or for other purposes, — or at any meeting specially ap- 
 pointed by them for the proof of debts, of which ten days' 
 previous notice has been given in the London Gazette. 
 This last is also considered a public, and not a private 
 meeting ; and any creditor may have one called for the 
 proof of his particular debt, upon paying the expenses of 
 the meeting. 
 
 In the early administration of the Bankrupt law, it was 
 considered, that after any dividend declared of the bank- 
 rupt's effects, a creditor could not be admitted to prove 
 his debt, unless under particular circumstances. (3) But 
 
 (1) Ex parte ^<?j?;a»H«,Buck.41. (3) Hob. 287. Hutt. 38. Good. 
 
 (2) Ex parte Grove, 1 Atk. 105. 43.
 
 Sect. 4'.] OF THE PROOF OF DEBTS. 193 
 
 such a restriction has a long time ceased ; and any creditor, Tivie of 
 now, before a final dividend is declared (unless there have P^°°-'- 
 been gross laches on his part) is entitled to prove his debt, 
 so as not to disturb any former dividend. And he has a 
 right to be brought up equal to the creditors under the 
 former dividend, before the commissioners can proceed to 
 make a fresh one. (I) Where a creditor, however, laid by 
 for fifteen years after the date of the commission, when both 
 the bankrupt and the assignees were dead. Lord Hard- 
 wicke would not allow him, under these circumstances, to 
 be admitted a creditor. (2) 
 
 Section IV. 
 Manner of Proof. 
 
 The usual mode of proof (3) is for the creditor to attend Creditor 
 in person before the commissioners, and make oath (or if '""^t ^t- 
 he is a quaker (4-), affirmation) of the truth and justice of person, 
 his debt; — which, if not objected to by the bankrupt him- 
 self, or any of the creditors, within a reasonable time, is 
 conclusive (5) ; but if any well founded objection is raised, 
 the demand must be substantiated by further evidence. 
 For notwithstanding the creditor makes a positive oath of 
 the debt, if the commissioners have any just grounds to 
 doubt its fairness, they ought to admit it only as a claim ; 
 — or, indeed, it may be rejected entirely, if it is not made Proof may 
 out in any way to their satisfaction. (6) For the jurisdic- • 5^j 
 tion of the commissioners in this I'espect, like that of the 
 the Lord Chancellor, is both legal and equitable. Thus Commis- 
 they not only may, but are bound to enquire into the con- ^'^"^""^ 
 sideration of a debt, notwithstanding a verdict; for if there quire into 
 ■are equitable grounds to impeach the verdict, they may 
 
 considera- 
 tion. 
 
 (1) Ex parte Stiles, 1 Atk. 209. (5) Bromley v. Goodere, 1 Atk. 
 
 (2) Ex parte Peachy, 1 Atk. 111. 77. 
 
 (s) And see Section 46. (i5) Ex parte Simpson, 1 Atk. 70. 
 
 (4) Section 99. Ex parte Wood, ibid. 221. 
 
 G
 
 194< 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Manner 
 of proof. 
 
 Form of 
 deposi- 
 tion. 
 
 When 
 proof may 
 be made 
 by affida- 
 vit. 
 
 Corpora- 
 tion may 
 prove by 
 an agent. 
 
 Where the 
 oath of 
 creditor 
 dispensed 
 with. 
 
 reject (1) the proof; and even though there be a judgment, 
 it seems, that the commissioners may also enquire into 
 the (2) consideration ; and the same in the case of proof 
 being tendered on an award. (3) The proper form of 
 the creditoi-'s deposition is, that the debt was due and 
 owing before, and at the date and suing forth of the com- 
 mission. (4) 
 
 If any creditor lives remote (5) from the place of meeting 
 of the commissioners, he may then prove his debt, by 
 making an affidavit of it before a master in Chancery ; — 
 or in case he lives out of England, then by affidavit sworn 
 before a magistrate where such creditor shall be residing, 
 and attested by a notary public, British minister, or con- 
 sul. Where a creditor in such a case died, after making the 
 affidavit, and before it was exhibited to the commissioners, 
 the admission of the affidavit in proof was considered irre- 
 gular, and the commissioners were directed to review the 
 proof, although no dividend had been paid (6) upon it. 
 
 A Corporation^ or any jpublic Company incorporated by 
 charter or act of parliament, may prove by an agent, pro- 
 vided the agent make oath that he is such agent, and 
 authorized to make the proof. (7) But any person apply- 
 ing to prove for any other creditor must produce his au- 
 thority, and have it exhibited. (8) 
 
 In one case where the creditor was abroad^ and it was im- 
 possible to liquidate and adjust the accounts between him 
 and the bankrupt, before the holding of a particular meeting 
 
 (1) Ex parte Rashleigh. Ex 
 parte Butlerfil, 1 Rose, 192. 
 
 (2) iV. & B.214. 
 
 (3) Ex parte Hemstead, 1 Rose, 
 149. 
 
 (4) Bamfordv. Burrel, 2 Bos. 1. 
 (.5) Section 46. 
 
 (6) Ex parte Bridges, 4 Mad. 
 269. 
 
 (7) It was formerly necessary to 
 exhibit the appointment of the 
 agent under the common seal of 
 the corporation ; (Green, 1 1 7.) and 
 
 in the case of the Bank of England, 
 a clerk was obliged to produce a 
 power of attorney to enable him 
 to prove a debt due to the Bank. 
 Ex parte Banic of England, 1 8 Ves. 
 228. 1 Rose, 142. 1 Wils. 295. 
 And now also a power of attorney 
 is necessary to enable the agent to 
 vote in the choice of assignees. 
 Vide Section 61. 1 Wils. 295. 
 1 Swan St. 10. 
 
 (8) C. B. L. 130.
 
 Sect. 4.] OV THE PROOF OF DEBTS. 195 
 
 advertised for the proof of debts, tlie oatli of the creditor Manner 
 was dispensed with by a special order of the Lord Chan- ^ ^' ""-'' 
 cellor, and the commissioners were directed to receive tlie 
 proof of his debt without it. (l) It is very doubtful, how- 
 ever, whether such an order could be obtained in the pre- 
 sent day, — or whether the creditor would, under these 
 circumstances, be permitted to do any thing but claim. 
 
 Where a trustee proves a debt against the bankrupt, the Proof by 
 cestui que trust ought to join with him in the deposition, and ^ trustee. 
 the trust deed should be exhibited to the commissioners. (2) 
 
 So, where the assignee of a bond applies to prove, the Assignee 
 assignor must join in the proof, and the bond and assign- ^ ^ ° 
 ment must be also exhibited. (3) 
 
 If a navy agent be bankrupt, one of the admirals may Navy 
 prove in behalf of himself and of the crew. (4) agent. 
 
 In the case of an iirfant creditor^ he will be permitted Infant 
 on petition to prove by his (5) guardian. ^^^ ''°^' 
 
 Where a creditor of the bankrupt became deranged in Where 
 his mind, and a friend, at the request of the creditor's [nLne°'^ 
 fauiily, had undertaken the superintendance and manage- 
 ment of his business, such person was permitted to prove 
 the debt due to the creditor from the bankrupt, and to 
 vote in the choice of assignees, without a commission of 
 lunacy being issued — upon an affidavit of the facts, and a 
 certificate of a physician that the creditor was deranged. (6) 
 
 Where the bankrupt is an executor or trustee, and ap- Where the 
 
 plies to prove against his own estate, the commissioners bankrupt 
 , . . , is an ex- 
 
 should not receive the proof without a special order of the ecutor or 
 
 Lord Chancellor, to which is always annexed a condition, trustee. 
 
 that the dividends received under such proof are not to 
 
 come into the hands of the bankrupt. (7) 
 
 (1) Ex parte Yomg,C. B. L. 121. (5) Ex parte Belton, 1 Atk. 251. 
 
 (2) Green, 149. Beardmore v. (6) Ex parte Maltby, 1 Rose, 
 Crz(#e?2rfe'?i, C. B. L. 211. Ex parte .387. 
 
 Dubois, 1 Cox, .310. (7) Ex parte Shaw, 1 G.& J. 161., 
 
 (.3) 1 Mont. Dig. 145. and see post, p. 222. Sect. 10. 
 (4) Ex parte Russet, 4 Mont. B. 
 
 L. 78. 
 
 o 2
 
 Id6 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Manner 
 of proof. 
 
 Securities 
 must be 
 produced. 
 
 Appeal to 
 the Chan- 
 cellar. 
 
 Every security that a creditor has for his debt must be 
 produced at the time of his proving, when the commis- 
 sioners mark them as having been exhibited ; and if he has 
 a. judgment, an office copy of it must be exhibited. (1) 
 
 If the commissioners improperly admit, or reject, a proof 
 — the proper course is, to petition the Lord Chancellor 
 to have the proof admitted, or expunged. (2) 
 
 Judgment 
 creditors 
 not pre- 
 ferred to 
 the rest ; 
 
 nor an 
 execution 
 creditor, 
 where the 
 judgment 
 by default 
 or confes- 
 sion. 
 
 Order of 
 the Court 
 of Chan- 
 cery. 
 
 Section V. 
 Of Judgment Creditors. 
 
 A judgment creditor is not entitled to receive more than 
 a rateable part of his debt (3), except in respect of an 
 execution, or extent, served and levied by seizure upon the 
 property of the bankrupt before (4) the bankruptcy. And 
 no creditor, though for a valuable consideration, who even 
 sues out execution upon any judgment obtained by default, 
 confession, or nil dicit, shall avail himself of such execution 
 to the prejudice of other fair creditors, but shall be paid 
 rateably with such creditors. 
 
 An Order of the Court of Chancery for the payment of 
 money may be proved under a commission, and as a debt 
 proveable, will be barred by the certificate. (5) 
 
 But money due upon a judgment for mesne profits, or a 
 
 (1) C. B, L. 129. Ex parte Wil- 
 liamson, 1 Atk. 8.3. 
 
 (2) Clarke v. Capron, 2 Ves. 666. 
 C.B.L. 150. 
 
 (3) See Section 108. 
 
 (4) And see Keiuland v. , 
 
 1 P. Wms. 92. Orlebar v. Fletcher, 
 ibid. 757. Sharpe v. Roahde, 
 
 2 Rose, 192. In the 2d vol. of 
 Schoales & Lefroy's Reports, 425. 
 there is a dictum of Lord Redes- 
 dale, that if judgment was entered 
 up before the bankrupt was a 
 trader, it binds the lands, not- 
 
 withstanding subsequent trading 
 and bankruptcy, although execu- 
 tion is not issued. But this observ- 
 ation of that learned judge was 
 intended to apply only to the Irish 
 bankrupt act (the 11 & 12 G. 3. 
 c. 8. s. 5.) and was not meant to 
 extend to the Bankrupt law of 
 England. 
 
 (5) Ex parte Par/cer, 3 Ves, 554. 
 Wall V. Atkinson, 2 Rose, 196. In 
 the matter oi M^ Williams, 1 Scho. 
 & Lef. 1 74.
 
 commis- 
 sion. 
 
 Sect. 5.] OF THE PROOF OF DEBTS. 197 
 
 judgment in an action for damages on a tort — where the ver- Judgment 
 diet is after {1) the bankruptcy of the defendant — or where ^[^J_^- 
 the verdict is even before, but the judgment is not signed Judgment 
 till after the act of bankruptcy, and after the issuing of the ^'^"^"^ 
 commission (2) — is not in either of such cases proveable. ofbank- 
 A verdict, indeed, is only prima facie evidence of a debt, '""P^'^y* 
 which the creditors of the bankrupt are at liberty to (3) 
 impeach, and into the circumstances of which, if impeached, 
 the commissioners, as we have before seen (I'), are bound to 
 enquire. Where the plaintiff, however, in an action of Before 
 trespass (having obtained a verdict) signed final judgment 
 before the cojnmissioii issued, though after the act of bank- 
 ruptcy, the Court of King's Bench have lately decided, 
 that the judgment was proveable, as being a debt bondjide 
 contracted between the act of bankruptcy and the issuing of 
 the commission, within the meaning of the 46 G. 3. c. 1 35. 
 s. 2. — and, consequently, within the meaning, also, of the 
 forty-seventh section of the new statute, which adopts that 
 clause of the former act. (5) And in a still more recent After corn- 
 case, though the judgment was not actually signed till three mission, 
 days after the commission issued, it was held, nevertheless, 
 to relate back to the first day of the term in which it was 
 signed — and this being before the issuing of the com- 
 mission, the judgment was held to be proveable. (6) 
 
 Where a creditor is entitled to prove in respect of any Costs, 
 judgment, decree, or order, he may now also prove for 
 the costs, though the costs were not taxed at the time of 
 the bankruptcy. (7) 
 
 (1) ilioggric/gev. Z>aDW, Wight w. (5) Robinson v. Vale, 2 B. & C. 
 Rep. 16. 762. 
 
 (2) Bussy. Gilbert,2M.&S.'70.i (6) Ex parte Birch, 4 B. & C. 
 and see post, " Costs." 880. 
 
 (5) Ex parte Rashleigh, 1 Rose, (7) Section 58. ; and see post, 
 192. Section 19. " Costs." 
 
 (4) Ante, 193. 
 
 o S
 
 198. 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9- 
 
 Assignees 
 may pay 
 ofFmort- 
 
 bctbre 
 forfeiture. 
 
 After for- 
 feiture, 
 mortgage 
 must be 
 sold, and 
 proof 
 made for 
 the resi- 
 due. 
 
 Mode of 
 proceed- 
 ing when 
 mortgage 
 sold. 
 
 Section VI. 
 Of Creditors having a Mortgage, or equitable Lien. 
 
 When a creditor has a mortgage from the bankrupt, of 
 any property pledged by hhii upon condition or power of 
 redemption at a future day, the assignees may, by the 
 seventieth section of the new statute, before the time 
 limited for the performance of such condition, make tender 
 or payment of money or other performance, according to 
 such condition, as fully as the bankrupt might have done; 
 and may afterwards sell and dispose of the mortgaged pre- 
 mises for the benefit of the creditors. 
 
 But if the mortgage is forfeited, and the creditor appre- 
 hends it is not equal to the payment of his debt, he must 
 then apply to the commissioners to have the mortgage sold, 
 and be admitted to prove for the residue. Or he may, if he 
 chooses, file a bill against the assignees for a foreclosure — 
 and that, even before the execution of the bargain and sale 
 to the assignees by the commissioners. (1) 
 
 In order to have the mortgage sold, a special application 
 to the Lord Chancellor was formerly necessary (2) ; but 
 this maybe done now under the general order (3) — by 
 which the commissioners are directed to have the mort- 
 gage sold, either before them, or by public auction, previ- 
 ously causing due notice to be given in the London Gazette, 
 and in such other of the public papers as they shall think 
 fit, of the time and place of sale. The proceeds of the 
 sale (4) are to be applied — first, in payment of the expenses 
 attending the sale, and then in payment of what is due to 
 
 (l) Bainbridge v. FinJiorn, 
 1 Buck. 135. 
 
 (2) Ex parte Howelt, 7 Vin. 101. 
 Ex parte C'oHu'«g, 9Ves. 115. Ex 
 parte Weiherell, UVes. 398. Ex 
 parte Haigli, ibid. 403. Ex parte 
 Twogood, 19 Ves. 231 
 
 (3) Lord Loughborough, 8th 
 March, 1794. 
 
 (4) As to the rules for conduct- 
 ing the sale of the bankrupt's pro- 
 perty, whether under the general, 
 or a special, order, see post, " As- 
 signees."
 
 Sect. 6.] OF THE PROOF OF DEBTS. 199 
 
 the mortgagee for principal, interest, and costs ; and in case Mort- 
 the proceeds are not sufficient for that purpose, the mort- ^ "^^^' 
 gagee may be admitted a creditor for the deficiency. But Interest, 
 he can only prove for interest up to the date of the com- 
 mission. (1) 
 
 The commissioners have jurisdiction, under this order, As to 
 
 to take an account of the expenses attending the sale of the *^^'"S t"^ 
 11 ^ II • \ mortgage 
 
 mortgaged premises, and to tax the costs oi all parties. (2) account. 
 
 And where it is merely a question of convenience, it will be 
 left to the assignees to choose, whether the mortgage ac- 
 counts shall be taken before the commissioners, or the 
 Master. (3) 
 
 All personal securities^ which are merely pledged or de- Personal 
 posited by the bankrupt with the creditor, may (we have ^^^^u^ties 
 seen (4) ) as well as mortgages, be directed by a special also sold, 
 order to be sold before the commissioners (5) ; but in 
 this case the assignees are alone entitled to insist upon the 
 sale. (6) 
 
 Where there is a second mortgagee, who does not Second 
 
 claim under the commission, but rests upon his security "'^''^g^S^^, 
 11-111 -11 . , not bound 
 
 — whether it be a legal or an equitable mortgage — neither to join in 
 
 the commissioners, nor the Lord Chancellor, have power to '*^'^* 
 compel him to join in the sale obtained by a prior mort- 
 gagee. (7) But where a second mortgagee elects to aban- But if he 
 
 don his security and come in under the commission, under P*""^^^' P^ 
 "' . waves his 
 
 the impression that the first mortgagee will not receive right to 
 
 sufficient by the sale of the estate to pay off his mortgage, ^"^ ^"'"' 
 -^ ' •' 3 o » plus from 
 
 but upon a sale there turns out to be a surplus, — the it. 
 second mortgagee in this case will not be allowed to with- 
 draw his proof, and be remitted to his mortgage. (8) When Where 
 the second mortgagee will not consent tp join in a sale, the mort^aasee 
 
 (1) Ex parte Wardell, C. B. L. (5) Ex parte jyi//zV;-, C.B.L. 125. 
 195. Ex Tp&xte Harey, ibid. Ex (6) Ex parte Z'?•o^^g/^^?^, C.B.L. 
 parte ^arfger, 4 Ves. 165. 124. Ex parte Gi2?-6^Her, ibid. 
 
 (2) Ex parte Mather, 1 G. & J. (7) Ex \idLne J ackson, 5Ves.357. 
 342. Ex parte Tophavi, 1 Mad. 38. 
 
 (3) Ex parte Ansley, Buck. 292. (8) Ex }^avte Downes, 1 Rose, 96. 
 
 (4) Ante, 179. IsVes. 290. 
 
 o 4
 
 200 OF THE PROOF OF DEBTS. [Cll. 9, 
 
 Mori- better plan seems to be for the assignees to request the 
 gages^ commissioners to call before them both mortgagees, and 
 refuses to examine them as to the amount of the principal and in- 
 join in the ^gj.gg{. ^j^g qjj their respective mortgages. Tlie assignees 
 may then advertise the estate for sale, subject to the two 
 mortgages ; — and if more is bid for it than what is due on 
 both, the assignees, or the purchaser, can in that case I'e- 
 deem them. If there is no advance, both mortgagees will 
 then be left to their usual remedy, and the assignees will 
 have no further interest in the premises. (1) 
 When A mortgagee has a right to have the estate sold in the 
 
 '"'t^tPf t^ same plight, as it was in at the time of the bankruptcy, 
 an injunc- Therefore, where the bankrupt (before assignees were 
 '^°"' chosen) was proceeding to cut underwood which he had 
 
 mortgaged, the Lord Chancellor, upon the application of 
 the mortgagee, granted an injunction to restrain him from 
 so doing. (2) 
 Where Where a mortgagee wishes to bid at the sale as a pur- 
 
 mortgagee chaser of the property mortffaiTed, it is usual for him to 
 wishes to ^ir^oD' 
 
 bid at sale, ^pply l^y petition for leave to do so (3), undertaking to 
 make good the deficiency between the sum bid and the 
 price to be fixed by the Master, in case the latter should 
 not approve of the bidding. (4 ) But though it is the prac- 
 tice for the mortgagee to apply to the Court, it has been 
 doubted whether such an application is absolutely ne- 
 cessary ; as it is always competent to him to purchase 
 from the mortgagor the equity of redemption, and the 
 bankruptcy does not seem to make any difference. (5) If, 
 indeed, the mortgagee has a power of sale given him by 
 the mortgage, he is then considered in the light of a 
 trustee, who is in general disabled from purchasing for 
 himself (6); but, in Bankruptcy, he may wave his special 
 
 (1) 2 Christ. B. L. 523. (5) Ex parte Hammond, Buck. 
 
 (2) Hampton v. Hodges, 8 Ves. 464. ; and see Sugden, Law V. & 
 105. P. 572. 
 
 (.3) Ex parte Ducane, Buck. 18. (G) Downes v. Grayehrookcy 
 E.t parte March, 1 Mad. 148. 3 Mer. 206. 
 
 (4) Re Salisbury, Buck. -349.
 
 Sect. 6.J OF THE PROOF OF DEBTS. 201 
 
 power of sale, and apply for one in his general character of Mort- 
 mortfragee, — when liberty will be given to him to bid, the S ^S^^- 
 sale being before the commissioners, and conducted by 
 the (1) assignees. When a mortgagee becomes the pur- When the 
 chaser of the premises mortgaged, he is liable for the ex- jjab^e^foV 
 penses of the sale — if it does not produce a sum equal expenses. 
 to pay those expenses, as well as the amount of his mort- 
 gage. (2) 
 
 Sales by auction of any real or personal estate of the Auction 
 bankrupt are, by the 68th section of the statute, declared "*^* 
 to be free from any auction duty. But it seems, that pro- 
 perty which the bankrupt has mortgaged is (after the mort- 
 gage is forfeited) not within this exception, as not being in 
 law any longer the property of the bankrupt. (3) 
 
 The above general order of Lord Loughborough, as to As to equi- 
 the sale of property mortgaged, applies only to legal mort- 
 gages, and not to equitable ones ; in the latter case, there- 
 fore, a special order of the Lord Chancellor must be 
 obtained before a sale can be had. An equitable mortgage How cre- 
 is created by the deposit of title deeds, with an agreement, 
 either written or parol, that they are deposited as a 
 security for the debt ; and the mere possession of the 
 
 (1) Ex parte Hodgson, 1 G. & J. real or personal property of the 
 12. bankrupt are exempted from the 
 
 (2) Bowles V. Perring, 2 B. & B. duty, without confining the ex- 
 457. 5 Moore, 296. emption (as in the 19G. 3. c. 56. 
 
 (3) Coare v. Q-eed, 2 Esp. 699. s. 15.) to " sales by the order of 
 Rex' V. Abbott, 5 Pri. 178. Mr. the assignees," the mortgaged pro- 
 Sugden in his Law of Vendors and perty sold under the bankruptcy 
 Purchasers (page 12.) thought, that will not be liable to the duty. But 
 the decision in Coare v. Creed could both the above cases were decided 
 not be supported; but it has been on the principle, (independently 
 since considerably strengthened by of the point made in Coat-e v. Creed, 
 the subsequent case of Rej: v. Ab- that a sale of mortgaged property 
 bott, in which all Mr. Sugden's in- under the general order, was not 
 genious arguments, against the liabi- a "sale by the order of the as- 
 lityto the duty, were urged without signees,") that the sale, except as 
 effect in the Court of Exchequer, to the equity of redemption, was 
 Mr. Eden, too, in his Treatise on the not a sale of the estate of the bank- 
 Bankrupt Law, (p. 100.) conceives rupt, but a sale of the estate of the 
 that, as the new act declares in mortgagee. 
 general terms, that all sales of the 
 
 table mort- 
 gages. 
 
 ated.
 
 202 OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Mortgages deeds, if no other purpose of deposit is shewn, affords a 
 equi^a^ presumption that the estate was intended to be a se- 
 curity.( 1 ) Disapprobation has been expressed by the present 
 Chancellor of such mortgages being founded on a mere 
 joffroZ agreement (2), as leaving an opening to perjury which 
 the statute of frauds was intended to prevent; but he con- 
 sidered the doctrine too long established now to be (3) dis- 
 Validity turbed. The validity of an equitable mortgage is decided 
 of, how by the Court, without reference to the commissioners; but 
 blished. when the mortgage is established, a reference is then made 
 to them to take an account of what is due on it; or, in 
 doubtful cases, the Court will direct an issue. (4) 
 Difference In order to discoura2;e equitable mortgajres founded on a 
 ^y'^th'^^' i'^^"^^ sg^'Gement, Lord Eldon has introduced the practice 
 agreement of making a difference in the allowance of the costs 
 
 IS in ivrit- attendinjT the sale of the property, where the deeds are 
 
 mg, or by . " t i ^ ' 
 
 parol. deposited under the terms of a written agreement, and 
 
 where there is no a£jreement in writing. If there is a 
 written agreement, then the costs of the petition for the 
 sale, and of all fair inquiries into the validity of the 
 security, will be ordered to be satisfied out of the pro- 
 ceeds of the sale (5); and though the written agreement 
 requires the aid of parol testimony to explain it, the mort- 
 gagee will be equally entitled to costs. (6) But where 
 there is no agreement in writing accompanying the deposit 
 of the deeds, the costs are ordered to be paid by the mort- 
 gagee (7); — though, if the assignees oppose the petition 
 
 (i) Rmsel V. Mussel, 1 Bro. 269. Coombe, 17 Ves.369.; and see post, 
 
 Featherstone v. 'Fenwick, Harford " Lien." 
 
 V. Carpenter, ibid. note. Ex parte (4) Ex parte Jennings, 1 Mad. 
 
 Bruce, 1 Rose, 374. ; but see Lucas 531. 2 Swanst. 360. 
 
 V. Dorriii, post, 204. (5) Ex parte Garbutt, 2 Rose, 
 
 (2) Ex parte Hooper, 2 Rose, 78. Ex parte Trew, 3 Mad. 
 329. 372. Ex parte Brightiven, Buck. 
 
 (3) Ex parte Cojmwg, 9 Ves. 115. 148. Ex parte Sikes, Buck. 349. 
 Ex parte Wetherell, 11 Ves. 398. 1 Swanst. 3. 
 
 Ex parte Haigh, ibid. 403. Han- (6) Ex parte Vauxhall Bridge 
 
 key V. Vernon, 2 Cox, 12. Hearn Company, 1 G. &. J. 101. 
 
 V. Mill, 13 Ves. 114. Ex parte (7) Ex parte Jranj/, 19 Ves. 472. 
 Mountfort, 14 Ves. 606. Ex parte
 
 Sect. 6.] OF THE PROOF OF DEBTS. 203 
 
 for sale on frivolous or mistaken grounds, they will then Mortgages 
 
 be ordered to pay the costs occasioned by such oppo- ^' ^'" ^ 
 
 sition. ( 1 ) Such a mortgagee, however, is not the more 
 
 entitled to costs, because it was owing to the bankrupt that 
 
 no regular mortgage was made. (2) 
 
 It is no answer to an application by an equitable mort- When a 
 
 gaeee for the sale of a lease, that it contained a covenant ^^?^^ ^'^^' 
 
 tains a 
 against assigning without licence from the lessor, and that covenant 
 
 no licence had been obtained ; for the lessor might perhaps ^P^ to as- 
 
 wave the forfeiture, and the mortgagee has a right, as 
 
 against the assignees, to avail himself of the advantage 
 
 which he has by the possession of the lease. (3) When Whatpar- 
 
 the property is sold, the assignees must join in the con- *'^^ ^^^^ 
 
 veyance ; for an equitable mortgagee cannot himself effect 
 
 a valid assignment of the premises to a purchaser. (4) 
 
 Where the deeds have been delivered for the express As to de- 
 purpose of preparing a legal mortgage, which does not [jg^^g £^j, 
 afterwards take effect, there has been much difference of the pur- 
 opinion, whether, or not, such a deposit will of itself amount prenarin<T 
 to an equitable mortgage. In one case (5) of this kind — a legal 
 where the deeds were delivered to an attorney to prepare a mortgage, 
 mortgage, and bankruptcy intervened before the mortgage 
 was prepared and executed — Lord Thurlow decided that, 
 as the deeds were not deposited expressly for securing any 
 particular sum, the creditor had no lien on them. And 
 Sir William Grant, in a subsequent case before him, pro- 
 nounced a similar decision. (6) But Lord Kenyon de- 
 termined, that such a deposit amounted in equity to a mort- 
 gage, effectual from the time of the agreement to mort- 
 gage. (7) And in a more modern case of this description, 
 where the objection was taken, but in which none of the 
 
 (1) Ex parte Home, 1 Mad. (4) Hawkinsv. Ramsbotiom, iPri. 
 622. , 158. 
 
 (2) Ex parte , 2 Mad. {5) Ex p^rte Bulteel, 2Cox,243. 
 
 281. (6) Norris V. Wilkinson, 12Ves. 
 
 (3) Ex parte Baglehole, 1 Rose, 192. 
 
 432. (7) Edge v. Worthington, 1 Cox, 
 
 211.
 
 204. 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Mortgages 
 equitable. 
 
 No lien, 
 wliere ob- 
 ject of de- 
 posit not 
 explained. 
 
 Deposit 
 for one 
 purpose 
 does not 
 give a lien 
 for an- 
 other. 
 
 Where 
 only part 
 of deeds 
 deposited. 
 
 preceding cases appear to have been cited, Lord Eldon over- 
 ruled the objection — saying, that the principle of equit- 
 able mortgage is, that the deposit of the deeds is evidence 
 of the agreement to charge the estate, and that a deposit, 
 for the express purpose of preparing the security of a legal 
 mortgage, was stronger evidence of such agreement, than 
 mere evidence of an implied intention. (1) And this cer- 
 tainly appears to be more accordant with reason and good 
 sense, than the principle of the two preceding decisions. 
 
 But where there is no evidence to explain what was the 
 object of the deposit, the depositary in that case has no 
 lien on the deeds against the assignees. As where a cus- 
 tomer left a lease with his bankers, without stating for 
 what purpose it was left, — it was held, that the bankers had 
 no lien on it for their general balance. (2) So, also, a de- 
 posit of deeds for a particular purpose will not give the 
 depositary a lien upon them for any other purpose ; as 
 where deeds are deposited in order to obtain further 
 credit — this will not create a lien upon them for what is 
 due in respect of money previously advanced. (3) 
 
 A deposit of only ^jor/ of the title deeds of an estate, if 
 there is 'written evidence that the object was to create a 
 security upon the whole estate, will render the mortgage 
 as complete, as if all the deeds had been deposited. (4) 
 But where a bankrupt, having agreed to execute a mort- 
 gage to one creditor, deposited with him all the title deeds 
 to an estate, except the immediate conveyance to himself — 
 and deposited that conveyance with another creditor as a 
 security for his debt, premising to send him the remainder 
 of the title deeds — but there was no 'written agreement in 
 the case of either deposit, — the Lord Chancellor held, 
 that neither creditor had either separately, or collect- 
 ively, an equitable mortgage on the property (5) ; as it 
 
 (1) Ex \)2iTte Bruce, lRose,374. 
 
 (2) Lucas V. Dorrien, 7 Taunt. 
 164. 1 Moore, 29. 
 
 (3) Mountford v. Scott, 1 Turn. 
 274. 3 Mad. .54. 
 
 (4) Ex parte Wetherell, 1 1 Ves. 
 398. 
 
 (5) Ex parte Pearse, Buck. 525.
 
 Sect. 6.] OF THE PROOF OF DEBTS. 205 
 
 was not the intention that the first creditor should have a Mortgages 
 mortffaire until an actual one was executed to him — and the ^^"' ° ^' 
 Other was not to have an equitable mortgage, until he got 
 possession of the whole of the title deeds. Where, how- 
 ever, a bankrupt deposited all the title deeds with a cre- 
 ditor to secure a sum of money — and afterwards fraudu- 
 lently got possession of two of them, and deposited those 
 two with another creditor for money advanced, — the first 
 creditor was held not to have lost his lien by so parting 
 with the deeds, and to have a preferable claim in equity to 
 that of the last creditor. ( 1 ) Indeed it should seem, in such 
 a case, that the last creditor would have no lien ; for it has 
 been held, that a person, who wrongfully obtains the pos- 
 session of deeds, and deposits them with another in con- 
 sideration of an advance of money, confers upon the de- 
 positary no lien on them — notwithstanding the transaction 
 was hondjide on the part of the depositary, and he had 
 no notice of the wrongful possession of the other party. (2) 
 
 A deposit of copies of the Cotirt rolls of copyhold pre- Depositor 
 mises is such a deposit, as will create an equitable mort- court rolls, 
 gage. (3) 
 
 A deposit of deeds in the hands of a third person — who Deposit 
 may be fairly called a third person, abstracted from both ^^}^ ^ 
 parties — maybe a good equitable mortgage. Butwhei'e person 
 the bankrupt had deposited deeds in the hands of his own ^^,j.j^ , . 
 wife on behalf of the creditor, Lord Eldon said, it would mpt's 
 be too dangerous to hold, that the wife of the bankrupt was ' 
 to be considered a depositary of his title deeds, for the 
 benefit of any particular creditor ; and that, therefore, 
 such a claim to an equitable mortgage could not be sup- 
 ported. (4) And where a third person advanced money to When 
 
 the bankrupt, at the same time when the depositary made ^ '^ P^'"' 
 
 1 1 • 1 • 1111 ^°" ^'^" 
 
 advances to him, and it was verbally agreed that the de- vances 
 
 (1) Ex parte Meux, Ex parte Parker, 2 T. R. 376. Ex parte 
 Cawthorne, 1 G. & J. 1 16. 240. Nesbitt, 2 Sch. & Lef. 279. 
 
 (2) Hooper v. Ramsbottovi, (.5) Ex parte Warner, 1 Rose, 
 1 Camp. 121.; and see Hoare v. 286. 
 
 (4) Ex parte Coming, 9 Ves. 115.
 
 206 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Mortgages 
 equitable. 
 
 money, 
 lien does 
 not extend 
 beyond 
 
 him. 
 
 The pur- 
 pose of 
 deposit 
 may be 
 enlarged 
 by a sub- 
 sequent 
 agree- 
 ment. 
 
 When de- 
 positary 
 transfers 
 deeds to 
 third per- 
 son. 
 
 Deposit to 
 secure an 
 annuity. 
 
 positary was to retain the tieeils, as a security for the other 
 person as well as for himself, — Lord Eldon refused to 
 extend the lien beyond die advance of the actual de- 
 positary ; though, if the depositary had advanced nothing, 
 then he thought it might have been evidence of his being 
 a trustee for the other person. (1) But where deeds were 
 deposited by a naritten agreement with bankers as a security 
 for monies advanced, or to be advanced by them, and an 
 alteration took place afterwards in the firm, and money 
 transactions were had with the new firm, — it was held, that 
 if it appeared to be the agreement or intention of the 
 parties (notwithstanding the agreement might have been 
 hy pa7'ol) that the deeds originally deposited were to be 
 held, as a security for advances by the ncdo firm — that 
 would be su fficient to give the nexi: firm a lien on the 
 deeds; for though the deposit originally was oiily for a 
 particular purpose, yet that purpose might be enlarged by 
 a subsequent parol agreement. (2) 
 
 A transfer of deeds from a depositary to a third person 
 (who, at the request of the bankrupt, discharged the debt due 
 from the bankrupt to the depositary) was held not to be such 
 an assignment of them from the depositary, with reference 
 to the time of original deposit, so as to overreach an act of 
 bankruptcy committed before the transfer, and against the 
 express words of a defeazance on a warrant of attorney 
 from the bankrupt, stating that the deeds had been de- 
 posited with such third person by the bankrupt. (3) 
 
 A deposit of deeds, in order to give a party a further 
 security for an annuity previously granted, is a valid 
 equitable mortgage, and not within the provisions of 
 the Annuity Act (4) ; such deeds, therefore, need not be 
 registered. 
 
 (1) Ex parte Wkitbread, 1 Rose, parte Alexander, 1 G. & J. 409. Ex 
 299. J 9 Ves. 209. parte Lloj/d, ibid, 389. 
 
 (2) Ex parte Kensington, 2 Ves. (3) Ex parte Coombe, 1 Rose, 265. 
 & B. 79. Ex parte March, 2 Rose, 1 7 Ves. 369. 
 
 £59. Ex parte 5ro2i)«, ibid. Ex (4) Ex parte Pnc^, Buck. 221.
 
 Sect. 6.] OF THE PROOF OF DEBTS. 207 
 
 Where title deeds were deposited to secure a particular Mort- 
 
 sum, and afterwards a further sum was advanced by the ^ "^^^' 
 
 creditor; after which, and also after the act of bankruptcy, Difference 
 
 a memorandum was signed by the bankrupt, charoina: the ?^ *°. ^'^'^t' 
 o *' r ' o & j„g^ in the 
 
 deeds with the payment of such further sum, as well as the case of an 
 onVinal sum advanced by the creditor, — it was held that, ^'?"/'«'^/^> 
 the memorandum not bemg hostile to the origmal agree- mortgage. 
 ment, the signature of it ajter the bankruptcy did not affect 
 the deposit of the title deeds which took place before ; and 
 that the creditor was entitled to a lien for the whole 
 amount. (1) But if a mortgage be by deed, a further 
 charge by parol cannot be tacked to the original mort- 
 gage debt (2) ; for where the first mortgage is by a legal 
 conveyance, the mortgagee is never permitted afterwards to 
 hold the estate as further charged, not by a legal contract, 
 but by inference from the possession of the deeds. If, 
 however, the further charge is by bond — though it is ob- Where 
 scurely worded as to the agreement between the parties — chartre^ bv 
 that may be so tacked. (3) And a first mortgagee is entitled bond: 
 to tack a subsequent judgment, docketed before the exe- byjudg- 
 cution of the second mortgage, though no execution on ^^^"'• 
 the judgment had issued at the time of the bankruptcy. (4) 
 
 Whether a mortgagee, having the legal estate before Whether 
 
 the act of bankruptcy of the mortfTaf^or, can tack a second ^ ™ortga- 
 r - o t5 ' gee can 
 
 mortgage made for further advances after the act of bank- tack a se- 
 
 ruptcy, and without notice of the bankruptcy, is a point, condmort- 
 
 which is still left in considerable doubt by conflicting the act of 
 
 decisions. Lord Erskine decided that he could not (5) — bank- 
 
 riiptcy 
 founding his judgment upon what fell from Lord Redes- without 
 
 dale (6) and Lord Eldon (7) in two preceding cases. But notice. 
 
 more weight, according to Mr. Sugden, was given to those 
 
 (1) Ex parte Langston, 1 Rose, (4) Baher v. Harris, 16 Ves. 
 26. 17 Ves. 227. Ex parte fF/i«Y- 597. ; and see II Ves. 617. 
 bread, 19 Ves. 209. 1 Rose, 299. (5) Ex parte Herbert, 13 Ves. 
 Ex parte Hearne, Buck. 165. 183. 
 
 (2) Ex parte Hooper, 2 Rose, (6) Latouche v. Lord Dunsany, 
 328. 19 Ves. 477. 1 Mer. 7. 1 Sch. & Lef, 152. 
 
 (g) Ex parte Hearne, Buck. 165. C7) Ex parte KnxM, 1 1 Ves. 609.
 
 208 OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Mort' dicta than he thinks they in fact deserved, — and indeed 
 S "S^^' neither indicate any very strong opinion on the subject. (1) 
 
 Opposed to these dicta, and to Lord Erskine's judgment, 
 are two cases, which decide that such a mortsaffee can tack 
 a second mortgage under the above circumstances. One of 
 these was before Lord Talbot (2), in which he held that the 
 mortgagee, not having had notice of the bankruptcy, might 
 make use of his prior legal estate as a protection against 
 the commission — and in which also he took the dis- 
 tinction (3), that a secret act of bankruptcy did not prevent 
 tacking, as a commission issued actually did — which was 
 then held notice to all the world. In the other case (4') (which 
 was first before the Lords Commissioners) the bankrupt had 
 made a mortgage to A., — and after a commission issued 
 against him, made another to B., who obtained an assignment 
 of the first mortgage without notice of the commission; — 
 and it was held by two of the Lords Commissioners against 
 the third, that the prior mortgage did not protect the 
 mortgage subsequent to the commission, and that the 
 assignees might redeem, upon payment only of the money 
 due on the first mortgage. This decision, however, a})pears 
 to have been afterwards reversed on appeal to the House 
 of Lords, when the estate was ordered to be sold, and B. to 
 be paid the money due on the second mortgage (5); so 
 that, according to the final decision of the case, it was con- 
 sidered that a mortgagee might tack a second mortgage, 
 notwithstanding it was made subsequent to the commission, 
 provided he had no notice (6) of the issuing of the com- 
 mission. If, however, the second mortgage happen to be 
 made more than two calendar months prior to the com- 
 mission, though after the act of bankruptcy, then there is 
 no doubt that the mortgagee would have a right to tack, 
 under the provisions of the 815/ section of the new statute. 
 
 (l) Sugd. Law V. & P. 721. (4) Hitchcoc/cv.Sedgwick,2Yeni. 
 
 C2) Collet V. Be Golls, Forrest, 157. 
 65. (5) Sugden, V. & P. 721. 
 
 (3) Per Lord Eldon, 11 Ves.615. (6) And see Sowerby v. Brooks, 
 
 4 B, & A. 525.
 
 Sect. 6.] OF THE PROOF OF DEBTS. 209 
 
 The vendor of an estate has a lien on it for the pur- Mort- 
 chase money (1), on the principle that payment is an ^ "^^^' 
 essential part of the contract; and if, upon a re-sale after Lien of a 
 the bankruptcy of the purchaser, the estate produces less, ^j^""^'' '^'" 
 the vendor may apply the proceeds of the sale, first in chase 
 liquidation of the charges of sale, and then of the purchase ™°"^y' 
 money, and be permitted to prove for the deficiency. (2) And 
 though the vendor may not have conveyed the estate to the 
 bankrupt — and consequently has both the legal and equit- 
 able title in himself — yet he may, if he chooses, apply for 
 a sale of the premises in discharge of his lien for the un- 
 paid purchase money, and prove for any deficiency not 
 satisfied by the produce of the sale. (3) And where the 
 vendor agreed to sell the bankrupt some standing trees, to 
 be cut and taken away within a limited time, and the bank- 
 rupt cut and took away only part of them, before the 
 bankruptcy, — the vendor was held to have a lien upon 
 what were still growing, and to be entitled to prove for the 
 amount of the price of those taken away.(4) But where a 
 vendor sold timber, which was already felled and severed 
 from the freehold, and the vendee took away part of it, and 
 then became bankrupt, — it was considered doubtful in this 
 case, whether the vendor had a lien upon the remainder — 
 on the ground of the partial delivery amounting to a 
 delivery in law of the whole ; and an issue was directed 
 on the point. (5) The vendor's lien is not discharged, When lien 
 
 by his taking; bills of exchange, or any collateral security, T' , 
 J o , charged 
 
 for the amount of the purchase money — unless it can be by taking 
 shown, that he agreed to rest on such collateral security. (6) security. 
 But where it was agreed between a mother and a son, 
 that she should join in conveying her life-interest in an 
 
 (1) See the cases in Sugden, Law (5) Ex parte Gwynne, 12 Ves. 
 of V. & P. ch. 12. ; and post, 579. 
 
 Ch. XL Part 2. " Lien." (6) Ex parte Loaring, 2 Rose, 79. 
 
 (2) Bowles V. Rogers, C. B. L. Grant v. Mills, 2 Ves. & B. 506. 
 125. Ex parte Hunter, 6 Ves. 94. Hughes v. Kearney, 1 Sch. h Lef. 
 
 (3) Ex parte Gyde, 1 G. & J.525. 156. Ex parte Parkes, 1 G. & J. 
 
 (4) ^«on. 4Mont.B.L. Appen- 228. 
 dix, 16.
 
 216 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch.9. 
 
 Mori' 
 gages. 
 
 When 
 mortgage 
 fails, what 
 proof 
 allowed. 
 
 Applica- 
 bility of 
 security. 
 
 Where 
 creditor 
 insures 
 against 
 a contin- 
 gency, and 
 receives 
 the sum 
 insured. 
 
 Goods 
 pledged 
 cannot be 
 
 estate to a purchaser, the son undertaking in consider- 
 ation thereof to secure to her an annuity — and after the 
 execution of the conveyance, and before the annuity was 
 secured, the son became bankrupt, — it was held, that the 
 mother was not entitled to pi'ove for the value of the life- 
 estate, but only for the value of the annuity, and the arrears 
 at the date of the bankruptcy. (1) 
 
 Where money has been advanced by a creditor to the 
 bankrupt, either upon a mortgage, or other security, which 
 fails in consequence of the bankruptcy intervening, proof 
 may be always made for the amount of the money ad- 
 vanced, in respect of the contract implied by law, from the 
 loan. (2) And the same where the security fails for want 
 of a proper stamp. (3) 
 
 If a security is deposited by a bankrupt generally with 
 his creditor, to indemnify him for a balance then due, and 
 for such sums of money as shall be afterwards advanced — 
 and at the time of the bankruptcy the creditor has two 
 demands against the bankrupt, the one proveable under 
 the commission, and the other not, — he may apply his 
 security, in the first place, to reduce that demand which is 
 not proveable. (4) 
 
 Where a creditor had an assignment from the bankrupt 
 of a contingent interest, to secure in part a debt exceeding 
 the value of such interest, and the creditor insured against 
 the contingency, and upon its taking effect received the 
 sum insured, — it was held, that he could not prove for 
 the whole debt ; but that the sum recovered (being allowed 
 v,'hat he had expended for effecting the insurance) must be 
 deducted from the proof. (5) 
 
 Goods pledged as a security for money advanced, are in 
 the nature of a mortgage, and can only be redeemed upon 
 
 (1) Ex parte ProcA/MS,Buck.406. (4) Ex parte Havard, C. B. L. 
 
 (2) Exparte Co?»JHg, 9 Ves. 115. 124. Ex ^&ne Arkley, Ibid. 126. 
 (■r\ ,11. tr„^^„^., tT R 041 Ex parte i/wn/er, 6 Ves. 94. 
 
 (5) Ex parte Andrews, 2 Rose, 
 410. S. C. 1 Madd. 573. 
 
 [^2) ti,x parte coming, y v es. 1 15 
 
 (,3) Alves V. Hodgson, 7 T. R. 24 1 
 
 Ruff\. Webb, 1 Esp. 129. Brown 
 
 V. Watts, 1 Taunt. 553. Wilson v. 
 
 Vysar, 4 Taunt. 288.
 
 Sect. 6.] OF THE PROOF OF DEBTS. 211 
 
 payment of the money, for which they are pledged. But Mort- 
 when the person pledging becomes bankrupt, they cannot ^ "^^^' 
 be retained (like title deeds in the case of an equitable mort- retained 
 gage) for subsequent {\) advances. And goods pledged ex- °^^\ ^j" 
 pressly to secure a creditor, who has previously accepted and vances. 
 paid bills drawn on him by the bankrupt, are released from 
 further charge, as to other bills taken up and paid subse- 
 quently, — if the amount of the original sinn, paid on account 
 of the bankrupt, has been repaid to the creditor, without 
 the goods being sold. (2) A creditor having goods Whencre- 
 
 pledffed with him in part security of his debt — if he wishes ^ "^^ 
 
 ^ o I J ^ ^ ^ nave a 
 
 to prove for the purpose of voting in the choice of as- value set 
 
 siffnees, and there is not sufficient time previously to have "f^" , 
 " . . . ' *' goods, and 
 
 a sale — may, on petition, obtain an order that a value prove for 
 
 shall be set upon the goods, accordinfj to the market price ^}^^ '^'^' 
 . lerencei 
 
 of the day of the choice of assignees, and prove for the 
 
 difference between such value and the amount of his debt ; — 
 
 the creditor undertaking that, if the goods sell for more 
 
 than the value so set upon them, the excess of the proceeds 
 
 shall be for the general benefit of the creditors. (3j But 
 
 where it appears, clearly, that the delivery of the goods is 
 
 not a pledge, but amounts to an undue preference, such 
 
 an order will not be made. (4) The selling of a pledge by Selling a 
 
 a creditor, without applying first to the commissioners, F^"?^ 
 
 •PI • r 1 • 1 • N 1 does- not 
 
 does not (if there is no fraud in the transaction) destroy prevent 
 
 his right to prove the remainder of his debt. (5) proof. 
 
 The agent of a bankrupt attorney may prove the amount Agent may 
 
 of his whole debt, notwithstandino- he retains in his hands ^'^°':^ ^"'^ 
 . . , . . . retani pa- 
 
 certain securities and papers, which came into his posses- pers, &c. 
 
 sion as such agent, and upon which he has a lien. (G) 
 
 (1) Vanderzee v. Willis, 3 Bro. (5) Ex parte Greenwood, Buck. 
 21. Adams v.Claxton, 6Nei..'1^6.; 323. 
 
 and see Demainbray v. Metealf, (4) Ex parte Smith, 3 Bro. 46. 
 
 Prec.Cas.416. 2 Vern. 691. Jones Ex parte Barclay, 1 G. & J. 279. 
 
 V. Smith, 2Ves. 572. ; afterwards (5) Ex parte G^^/Zer, 2Madd.262. 
 
 reversed in Dom.Proc. (6) Ex parte »S'/'i?£'/^, IsVes. 164, 
 
 (2) JBirdwood v. Raphael, 5 Pri. 
 593. 
 
 p 2
 
 212 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 
 
 Section VIT. 
 Debts payable in futuro. 
 
 By the 5 1 5^ section of the new statute, any person who 
 has given credit to the bankrupt upon valuable consider- 
 ation for any money, which shall not have become payable 
 when such bankrupt committed an act of bankruptcy — 
 whether the credit is given upon any written security 
 or not — may prove his debt, as if the same was payable 
 presently, and receive dividends equally with the other cre- 
 ditors, deducting only a rebate of interest at the rate of 51. 
 per cent., to be computed from the declaration of a dividend, 
 up to the time such debt would have become payable, ac- 
 cording to the terms upon which it was contracted. 
 
 This section is nearly the same as the 9th section of the 
 49 Geo. 3. c. 121., which was framed to remedy many in- 
 conveniences under the former Bankrupt laws. For, before 
 that statute, if a creditor had no security for his debt in 
 •writing {!), and it was not payable till after his debtor be- 
 came bankrupt — as in the case of goods sold to the bank- 
 rupt upon a certain credit — the creditor was unable to 
 prove his debt under the commission ; — a disability, which 
 was productive of equal injustice, both to the creditor and the 
 bankrupt. (2) But now, by the above section, all debts con- 
 tracted before the act of bankruptcy, though not due till 
 afterwards, can be proved, whether there is a written security 
 or not, subject only to a deduction of 51. per cent, discount. 
 
 Section VIII. 
 
 Contingent Debts, 
 Formerly Contingent debts were formerly not proveable under a 
 able^unlets commission, whether die contingency was certain, or un- 
 
 (l) Ex parte £. /. CoOTjooTzj/, 2P. (2) See Parsloe v. Dearlovf, 
 Wins. 395. Hoskins v. Duperoy, 4 East, 458. 
 9 East, 498.
 
 Sect. 8.] OF THE PROOF OF DEBTS. 213 
 
 certain, unless it had happened before the act of bank- Contingent 
 ruptcy. (1) Thus, even a bill of exchange (where the ' 
 
 contingency is certain) if not due till after the bankruptcy, contin- 
 could not (before the 7Geo. 1. c.31.) be proved (2);— happened 
 any more than a debt on a policy of insurance (where the 
 contingency is uncertain) could before the 19 Geo. 2. c. 32., 
 unless the contingency had taken effect before the bank- 
 ruptcy. And, in more recent times, a bond to secure 
 the replacing of stock on a particular day could not be 
 proved, unless the day had arrived, or the condition was 
 broken before the bankruptcy. (3) Nay, even a warrant 
 of attorney to confess judgment for an existvig debt, being 
 accompanied with a defeazance that judgment should not 
 be entered up unless default was made in payment by a 
 particular day, could not be proved, if the bankruptcy took 
 place before that day arrived. (4-) Many subtle and refined 
 distinctions, also, were drawn between debts accruing pay" 
 able on a contingency — and present debts liable to be de- 
 feated on a contingency. (5) These cases (as Mr. Eden has 
 observed in his able exposition of the new statute (6)) will 
 be henceforth merely matter of curiosity, in consequence 
 of the important alteration made by the statute in the proof 
 of this species of debts ; — an alteration, that is certainly 
 not the least valuable of the different amendments in the 
 law of Bankruptcy, whether considered with a view to the 
 effecting of substantial justice, or to the disentangling this 
 species of proof from the intricacies, with which it was so 
 long perplexed. 
 
 The following is the alteration to which allusion has 
 been made : 
 
 By section 56 of the new act, if any bankrupt shall, be- But now 
 fore the issuing of the commission, have contracted any Pfoveable 
 
 (1) Ex parte E. I. Company, (2) Callowell \. CluUerbuck, cit. 
 2P. Wms. 396. Ex parte Groo7He, 2Str. 867. 
 
 1 Atk. 118. Ex parte Barker, (3) Ex parte JTing, 8 Ves. 334, 
 9 Ves. 110. Hancock v. Enttvistle, (4) Staines v. Fla?ick,8T.R.386, 
 3T. R.435. ■ (5) Ibid. 
 
 (e) Page 1 1 S. 
 
 P 3
 
 QU 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Contingent 
 debts. 
 
 before or 
 after the 
 contin- 
 gency. 
 
 Whether a 
 guarantee 
 for pay- 
 ment of 
 goods 
 proveable, 
 before cre- 
 dit has 
 expired. 
 
 debt payable on a contingency, which shall not have hap- 
 pened before the issuing of the commission, the person 
 with whom the debt has been contracted, may, if he think 
 fit, apply to the commissioners to set a value upon it, and 
 may prove the amount and receive dividends thereon ; or, if 
 the value shall not be ascertained before the contingency 
 happens, he may then, after the contingency, prove in 
 respect of the debt, so as not to disturb any former divi- 
 dend. He is however, of course, prevented from proving, — 
 if, when the debt was contracted, he had notice of any act 
 of bankruptcy committed by the bankrupt. 
 
 Under this section, Mr. Eden thinks, that there is no 
 reason now, why a guarantee for payment of goods should 
 not be proveable against the bankrupt guaranteeing the 
 payment, though the credit given to the purchaser be not 
 expired (1); as well as a guarantee by the bankrupt to 
 repay money lent to a third person, on receiving previous 
 notice — although no notice has been given before the com- 
 mission. (2) In each of these cases, the claim of the creditor 
 against the bankrupt has certainly been held to be contin- 
 gent; but, at the same time, it seems rather difficult for the 
 commissioners to set a value on the chance of payment by 
 the principal debtor — there being no rates of premium 
 yet calculated for insurance against dishonesty, or in- 
 solvency. If, indeed, the credit had expired in the one 
 case — or notice had been given in the other — and de- 
 fault made by the principal debtor — then, as a matter of 
 course, the creditor could prove against the guarantee. 
 
 For further observations as to the proof of con- 
 tingent debts, — see post : " Marriage Articles," " An- 
 nuities," " Bonds," " Insurance," " Costs," " Damages," 
 « Sureties." 
 
 (1) Ex parte Gordon, 15 Ves. (2) Exparte Mine/, 14Ves.l89.; 
 286. and see Utterson v. Vernon, 5 T. 
 
 R. 539. 4T.R. 570.
 
 Sect. 9.] OF THE PROOF OF DEBTS. 215 
 
 Section IX. 
 
 Creditors by Marriage Articles. 
 
 The Courts were formerly much hampered in the Former in- 
 relief, which they were able to afford the Bankrupt's wife conveni- 
 and children, under any settlement or bond made by him from dis- 
 for their benefit at the time of his marriage. For, as no ability of 
 contingent debt could, as we have just seen, be proved, 
 unless the contingency took place before the bankruptcy — 
 and a provision of this kind is, from its very nature, 
 generally uncertain and contingent, by reason of the 
 different limitations as to death and survivorship — the wife 
 and family of a bankrupt were often (under the old law) 
 entirely defeated of the provision intended to be secured to 
 them, — Lord Hardwicke observing, even in his time, that 
 the different acts then existing had not made a sufficient pro- 
 vision for the relief of such sort of creditors. (1) 'Thus, 
 although the husband, by marriage articles or bond, cove- 
 nanted with trustees to leave his wife a certain sum, " m 
 case she survived him" - — or to pay to trustees a certain sum, 
 *' m case she died, leaving childreii 'who shoidd attain the age 
 of 21" — and the wife happened to be living at the time of the 
 bankruptcy, — it was held, that the trustees could in neither 
 case prove the amount under the commission. (2) And so, 
 indeed, in every other case where the bankrupt had con- 
 tracted to pay money on a contingency, which had not 
 happened previous to the bankruptcy, and which might, 
 or might not, happen afterwards. In some cases, however, 
 where the contingency had happened after the bankruptcy, 
 and before any distribution had been made of the bankrupt's 
 
 (1 ) Ex parte Groome, 1 Atk. 1 1 7. Davies, 254. Stiiddy v. Tingcombe, 
 120. 5 Ves. 695. Ex parte Murphy, 
 
 (2) Ibid. Ex parte Caswell, 2 P. 1 Sch. & Lef. 44. Ex parte Mara, 
 Wms. 497. Ex parte Barker, 9 Ves. 8 Ves. 555. Ex parte Alcock, 1 V. 
 110. Tully V. Sparkes, Ld. Rayra. & B. 176. 1 Rose, 323. Brandon 
 1546. Str. 867. Ex parte Jef- v. Brandon, 2 Swanat. 321. 
 
 fries, 7 Vin. 72. Ex parte King, 
 
 P 4
 
 216 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Marriage 
 articles. 
 
 Creditors 
 may now 
 prove 
 under the 
 clause re- 
 lating to 
 contingent 
 debts. 
 
 When co- 
 venant 
 broken 
 before 
 bank- 
 ruptcy, 
 debt al- 
 ways 
 proveable ; 
 
 effects, tlie Court frequently, from the extreme hardship of 
 the case, and more especially when the wife had brought a 
 portion to her husband, would recommend the creditors 
 to make some provision for her, — which was in general 
 attended to. (1) And when the assignees were obliged to 
 come into a court of equity, to compel the performance of 
 a trust, the Court would then, as they required equity, 
 make them do equity, by securing the intended settlement 
 to the wife. Whei'e, however, the contingency was certain^ 
 — then, though it had not happened before the bank- 
 ruptcy, the debt could, nevertheless, be proved under the 
 7 Geo. 1. c. 31., being debitum in prcesenti solvendum in 
 futnro — as in the case of a bond payable at the death of the 
 obligor, or upon any other event which was sure to happen 
 within a reasonable time. (2) 
 
 But now, in all these cases, where the bankrupt binds 
 himself to pay a sum upon a contingency, the trustees or 
 parties interested may, under the BQtli section of the new 
 statute (3) already mentioned, apply to the commissioners 
 to set a value on their contingent interest, such as it may 
 be, and prove the amount under the commission ; — or 
 they may wait till the contingency happens — if they think 
 that the more advantageous course — and then prove for 
 the whole sum that has become payable. 
 
 Where, however, the bond or covenant to secure a 
 marriage portion was forfeited or broken before the bank- 
 ruptcy, it could always, in such a case, be proved under 
 the commission ; for, by the breach of the condition, the 
 penalty or sum covenanted to be paid becomes then a legal 
 debt. (4) And though the arrears of interest, in the pay- 
 ment of which default is made, are accepted after the for- 
 feiture, it is not such a waver of the forfeiture as to prevent 
 
 (1) Ex parte Greenivay, 1 Atk. 
 1 lo. Ex parte Mitchell, ibid. 1 20. 
 Ex parte Groome, ibid. 118. Hol- 
 land \. Calli/ord, 2Vern.661. 
 
 (2) Ex parte Mitford, 1 Bro.398. 
 
 (3) See ante, 215. 
 
 (4) Ex parte Winchester, Davies, 
 530. 1 Atk. 116. Ex parte Elder, 
 2 Madd. 282. Ex parte Rotvlatt, 
 2 Rose, 416. Ex parte Dicken, 
 Buck. 115.
 
 Sect. 9.] OF THE PROOF OF DEBTS. 217 
 
 the proof. (1) In every case, also, where there was a Marriage 
 
 remedy at law against the bankrupt before the bankruptcy '_ 
 
 upon the obligation he had entered into, the debt might and so 
 always be proved under the commission (2) ; as where he ^jngdy"^^ 
 entered into a bond or covenant to pay or invest money law 
 forthwith, or as speedily as possible, without any step being ^^^'j^"^ j 
 taken by the other party. 
 
 But there are still some cases where a contingent pro- Where 
 vision in a marriage settlement cannot be proved under settlement 
 a commission; — as where a provision of this kind is made ^o«rf's pro- 
 of the husband's property, and is expressly contrived for the P^''ty> 
 purpose of avoiding the operation of the Bankrupt laws, avoid the 
 Thus, if a bond be given by a trader upon his marriage to operation 
 trustees, to be forfeited upon the contingency of his becom- Bankrupt 
 ing insolvent, or a bankrupt, such a bond cannot be proved, — /«"'> debt 
 on the principle, that it would be defeating the effect of the ^j^jgl^ 
 Bankrupt law, and would be a fraud against the rest of the 
 creditoi's. (3) So a settlement by the husband (though not 
 in trade at the time, or intending then to trade) of free- 
 hold and leasehold estates, to the use of himself for life, 
 unless he should embark in trade and in the life of his wife 
 become bankrupt — and from his decease or bankruptcy, 
 then to secure an annuity to his wife — was, upon his 
 afterwards engaging in trade and becoming bankrupt, held 
 void as against his (4) creditors. 
 
 If, however, the wife brings a portion to the husband, Contra 
 
 then her fortune, or a proportionable part of the husband's .f'^f^ . 
 
 •^ ^ r f f wire brings 
 
 property, may be settled upon the husband until his bank- a portion 
 ruptcy, and then to her separate use, or to the use of the ^ ^^^ . 
 
 (1) 1 Atk. 118. phi/, 1 Sch. & Lef. 44. In the 
 
 (2) Ex parte Smith,C. B. L. 212. three first of these cases, the rea- 
 Ex parte Grainger, 10 Ves. 349. sons for the judgment of the Court 
 
 (3) Ex parte Hill, C. B. C. 228. are not noticed by Mr. Cooke ; it 
 Ex parte Matthews, ibid. Ex parte is uncertain, therefore, whether it 
 Bennet, ibid. 229. Ex parte Cooke, proceeded on the ground of the 
 8 Ves. 353. Ex parte Hennay, contingency, or the fraud; most pro- 
 1 Sch. & Lef. 46. Ex parte Oxley, bably, however, on both grounds. 
 
 1 Ball. & B. 257. Wise's Case, Ca. (4) Higinbotham v. Holme, 1 9 Ves, 
 temp. King, 46. Ex parte Mur- 88.
 
 218 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Marriage 
 articles. 
 
 But proof 
 
 limited 
 
 to the 
 
 amount 
 
 ofher 
 
 fortune. 
 
 children of the marriage; and if^ in such a case, any part 
 of the wife's fortune has been lent to her husband, the debt 
 may be proved (1) under a commission against him. As, 
 where in articles for the settlement of 10,000/. (which was 
 only part of the wife's fortune) upon the husband till his 
 bankruptcy, he covenanted to give a bond for 5000/. upon 
 the same trusts — and then received all his wife's fortune, 
 without making any settlement of his property on her, — 
 proof was admitted under his bankruptcy, not only for the 
 10,000/., but also for the 5000/., or for so much thereof as 
 the value of the wife's property received by the husband 
 would extend to, beyond the sum of 10,000/. (2) So, 
 where a trader, in consideration of his wife's fortune, con- 
 veyed his house to trustees, to his own use till death or 
 bankruptcy — and then, in either event, in trust to raise 
 1000/. for her separate use, — it was held to be a fair and 
 valid settlement (in the nature of a mortgage) to secure the 
 wife's fortune. (3) In one case, also, where the intention of 
 the parties was, that a bond by the husband to trustees for 
 his wife's fortune should be proveable in the event of his 
 bankruptcy — and it appeared that, through some mistake, 
 it was omitted to be so provided in the marriage settlement, 
 — the bond was permitted to be proved under the com- 
 mission. (4) 
 
 But in every case, where a settlement is made in consi- 
 deration of the wife' s fortune, the proof of the trustees will 
 be limited to the amount of what the husband has actually 
 received of her fortune. (5) For, where a trader on his 
 marriage received a portion of 600/. with his wife, and in 
 consideration thereof and of the marriage gave a bond for 
 1000/. to a trustee payable in six months, the interest to 
 himself for life if he should continue solvent — but, in case of 
 
 (1) Lockyer v. Savage, 2 Str. 
 947. Ex parte Browne, C. B. L. 
 215. Stretton v. Hale, 2 Bro. 490. 
 Ex parte Hinton, 14 Ves. 598. 
 
 (2) Ex parte Cooke, 8 Ves. 555. 
 
 (5) Higginson v. Kelly, 1 Ball. 
 &B. 252. 
 
 (4) Ex parte Verner, ibid. 260. 
 
 (5) Ex parte Youngi Buck. 179. 
 sMadd. 124.
 
 Sect. 9.] OF THE PROOF OF DEBTS. 219 
 
 his death or insolvency, the interest to his wife for her life, Marriage- 
 and the principal among the children of the marriage, — articles. 
 Lord Redesdale only allowed proof to be made for the 
 600/., and refused to permit the remaining 400/. to be 
 proved, that being the property of the husband, and the 
 settlement of it therefore fraudulent, according to the 
 authority of all the cases. (1) So, where by settlement 
 previous to the marriage of the bankrupt, 6000/. stock 
 (half of which was the fortune of the wife) was assigned to 
 trustees, in trust to pay the dividends to the bankrupt for 
 life, or until he should become bankrupt — and after his 
 death or bankruptcy, then to pay the same to the wife ; 
 and the trustees were thereby directed also to stand pos- 
 sessed of a bond for 2000/. (given by the bankrupt to the 
 trustees) in trust, if there should be no issue of the mar- 
 riage after the death of the bankrupt, to pay the interest 
 thereof to the wife for life, by nsoay of increase to the pro- 
 vision before made for her — and in case of issue living 
 at the death of the bankrupt, the bond was to be delivered 
 up to be cancelled ; and the wife was living at the time of 
 the bankruptcy, and there was no issue ; — Lord Eldon, 
 under these circumstances, held that the bond was not 
 proveable under the commission. (2) And in another 
 case, where the husband covenanted, in consideration of 
 certain contingent interests of ihe wife being conveyed to 
 him, that his executors should, six months after his death, 
 pay 3000/. to trustees, — it was held, that they could only 
 prove to the amount of what the husband's contingent 
 interest in the wife's property sold for under his bank- 
 ruptcy. (3) 
 
 In some cases, the trustees will not be permitted to Or to such 
 prove for the whole amount even of the wife's property, P^"!^ ?"'>"' 
 whether received by the husband or not, if any part of such eluded ii» 
 
 (1) In re Meaghan, 1 Sch. & (3) Ex parte Young, 3 Madd. 
 Lef. 179. 124. Buck. 179. 
 
 (2) Ex parte Taafe, 1 G. & J. 
 110.
 
 220 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Marriage 
 articles. 
 
 the settle- 
 ment. 
 
 Where the 
 bankrupt 
 makes a 
 false repre- 
 sentation 
 of his pro- 
 perty at 
 the time 
 of the 
 marriage, 
 
 trustees 
 may prove 
 for sum 
 cove- 
 nanted to 
 be settled. 
 
 property does not come within the terms of the settlement. 
 Thus, where the husband gave a bond to a trustee to enable 
 him, in case of bankruptcy, to come in as a creditor, as 
 well for the sum of 500/., as for so much beyond that sum 
 as could be ascertained to be the distributive share of the 
 wife in ho- father^ s properly, — and the wife was entitled (be- 
 sides this 500/.) to a legacy of 80/. under the will of her 
 brother, which was received by the husband, — Lord Eldon 
 allowed the trustee only to prove for the 500/., and ordered 
 the claim for the 80/. to be struck out. (1) 
 
 Where the husband makes a false representation at the 
 time of his marriage of the amount of his oxsoii property, q-uA 
 covenants with trustees to settle estates or money upon his 
 wife, which he is not entitled to or does not possess, and 
 the marriage takes effect upon the faith of such represent- 
 ation, — then the trustees, in order that the wife may not be 
 left wholly destitute by such a fraud, will be permitted to 
 prove for the amount of the sum which was so covenanted 
 to be settled. As where, by a settlement made before 
 marriage, it was recited that the intended husband had 
 1000/i and upwards employed in his trade, and it was 
 agreed that 500/. part thereof should be vested in trus- 
 tees, upon trust for the separate use of the wife for life, 
 and after her death, then for the husband and the children 
 of the marriage — and it appeared, that the representation in 
 the settlement was unfounded — that the money was never 
 paid — and the husband became a bankrupt, and died, leaving 
 his widow surviving, but no children; — upon a petition by 
 the trustees to prove for the 500/., Lord Eldon said, that 
 on the authority of the case of Montejwri v. Montefiori (2), 
 and many others, the husband was bound to make good 
 the representation in his marriage settlement ; and he made 
 an order, permitting the trustees to prove, and directing it 
 to be recited in the order, that it appeared that the repi'e- 
 sentation in the marriage settlement was y«/5f at the time 
 
 (1) Ex parte Hodgson, 19 Ves. 
 206. 
 
 (2) 1 B1.363.
 
 Sect. 9.] OF THE PROOF OF DEBTS. 221 
 
 it was made, and that the marriage was had upon the faith Marriage 
 of that representation. (1) So, where by settlement previ- " ^^'^^^^' 
 ous to the marriage the husband covenanted, in consider- 
 ation of the marriage, to transfer immediately afterwards, 
 or whenever requested by the trustees 2000/. stock (which 
 was falsely alleged to be standing in his name) into the 
 names of the trustees, upon the trusts of the settlement; 
 and the trustees frequently after the marriage requested 
 the husband to transfer the stock, which he repeatedly 
 promised to do, but never did, and became bankrupt, — 
 the trustees were in this case permitted to prove the value 
 of the 2000/. stock, upon filing a previous affidavit as to 
 the time at which the request was made — with refer- 
 ence to the then price of stock, which the commissioners 
 were directed to ascertain. (2) 
 
 Whenever the bond, or covenant, is for the investment When 
 
 of money or transfer of stock, zipon request, the specific pr^o^ ^e- 
 
 f i 111, , .,^, gulated by 
 
 time oi the request should be correctly ascertained ; tor the the price 
 
 amount of the proof will be regulated, by the price of the of stock. 
 
 stock at the time the request was made. (3) If the request 
 
 has not been made before the bankruptcy, the amount of 
 
 proof will then, perhaps, depend upon the price of the 
 
 stock on the day of commission. (4) 
 
 And in all these cases — whether the sum permitted to be When 
 
 proved is the original property either of the husband, or of ""sbj^nd 
 
 the wife — if the husband is entitled to the interest for life, to a life- 
 
 or to a subsequent contingent interest, the Court will order ^"^^'"fist >« 
 
 the dividends on the sum proved to accumulate as a fund, perty, di- 
 
 the interest of which fund the assignees will be permitted vidend to 
 .,,,,, . .11 1-r • . accumu- 
 
 to receive, it the bankrupt is entitled to a iiie-interest in late. 
 
 the property — the fund itself being kept together, to await 
 any future contingency declared by the marriage settle- 
 ment. When that contingency takes place, it will then 
 either be applied to the purposes of the trust, or be distri- 
 
 (1) Ex parte Gardner, 1 1 Ves.40. (5) Ibid. Ex parte Mace, 8 Ves. 
 
 (2) Ex parte Campbell, 16 Ves. 335. 
 
 244. (4) Ex parte Day, 7 Ves. 303. 
 
 Ex parte Leigh, 1 Mont. Dig. 229.
 
 222 OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Marriage buted amongst the creditors of the bankrupt, as the cir- 
 firttd£s^ cumstances of the case may be. (1) 
 
 Section X. 
 
 Creditors of a Bankrupt Executor, or Tmstee, and herein of 
 the Executors of a Creditor. 
 
 Trust pro- Where an executor or trustee becomes bankrupt — as he 
 afffeitedbv ^^^^ "^ auter droit, his bankruptcy does not take away his 
 the bank- rights as executor, or trustee ; and whatever property he 
 ruptcy. j^^y. pQssgss in either capacity, which can be distinguished 
 from his own, is not affected by the assignment of the 
 commissioners (2) — the assignees being bound to account 
 for it, and deliver it up to the persons who are really en- 
 Stock may titled to it. And in such a case, it is specially provided 
 f •*^'^dT* by the new statute (3), that where the bankrupt has any 
 new trus- stock standing in his name as trustee, either alone or 
 tee. jointly, the Lord Chancellor may order the stock to be 
 
 transferred to such person as he shall think fit, upon the 
 same trusts as it was subject to before the bankruptcy. 
 When But where the testator's property cannot be distinguished 
 
 be°mide ^ from the general mass of property in the possession of the 
 bankrupt, or when the bankrupt has been guilty of a 
 breach of trust in applying trust property to his own use, 
 proof must then be made for the amount due to the tes- 
 tator's estate, in such manner as shall be directed by the 
 Bankrupt Lord Chancellor. Until lately the commissioners in such 
 V°^ ] a case frequently admitted the bankrupt to prove against 
 
 prove his own estate, without obtaining previously any order of 
 
 against his ^^ Chancellor; but as this proceeding introduces into his 
 tate, with- character the double and inconsistent relation of debtor 
 out an and creditor — and as the commissioners have no power, 
 like the Chancellor, to annex a condition to the proof, that 
 
 (1) Holland v.CalUford, sVern. (2) Beiinetw. Daines,2P.y^ms. 
 662. Ex parte Groome, 1 Atk. 117. ."18, Rex v. Egginton, 1 T. R.570. 
 Ex parte Sviith, C. B. L. 212. Ex Hoivard v. Jemmett, 3 Burr. 1369. 
 p&vie Mitford, 1 Bro. 398. Strat- Ex parte Ellis, l Atk. 101. Ex 
 ton V. Hale, 2 Bro. 489. parte Lleivellyn, 1 C. B. L. 137. 
 
 (3) Section 77.
 
 Sect. 10.] OF THE PROOF OF DEBTS. 223 
 
 the funds shall not come into the hands of the bankrupt, — Executors 
 
 and t 
 tees. 
 
 Lord Eldon, upon a recent (1) occasion, very strongly dis- "" '^^^' 
 
 countenanced proof being admitted under these circum- 
 stances, on the mere authority of the commissioners. And, 
 in a subsequent case, where the bankrupt, who was exe- 
 cutor of one of his creditors, proved the debt under his 
 own commission, without previously obtaining the order 
 of the Lord Chancellor, and upon that proof signed and 
 carried his certificate, — Lord Eldon ordered the proof to 
 be expunged, and sent the certificate back to the commis- 
 sioners. (2) It is therefore now settled, that a bankrupt 
 executor is not entitled to prove under his own commis- 
 sion, without the special order of the Court. And the 
 Court, moreover, will not make such an order, except in a 
 case perfectly harmless — nor without special directions 
 that the dividends shall not be received by the bank- 
 rupt. (3) 
 
 Where the bankrupt has been guilty of a breach of trust, Where 
 or has committed a devastavit^ the Court will not permit j^^"*^'""?' 
 him to prove at all, but will order one of the legatees, or mitted a 
 other persons interested in the property of the testator, to breach of 
 prove on behalf of himself and the other parties in- permitted 
 terested. (4) Thus where two executors sold out trust to prove; 
 money in the funds, for the benefit of one of them who 
 died insolvent, and the survivor afterwards became bank- 
 rupt, — it was held, that the person interested in the trust but a 
 fund might prove against the estate of the bankrupt the '®sa*^^> 
 amount of the stock sold out, according to its value at the 
 time of the bankruptcy. The funds in this case had risen 
 considerably, between the time of sale and the date of the 
 commission; and the order was made with reference to 
 the rule in equity, that where a trustee has made use of 
 the trust fund, he may be compelled by the cestui que trusty 
 
 (1) Ex parte 57^aM;, 1 G.& J. 127. (s) Per Lord Eldon, 1 G. & J. 
 where there is a luminous judg- 161. 
 
 ment of Lord Eldon's upon this, (4) Ex parte Shakeshaft, 3 Bro. 
 and other points. 197. Ex parte Fairchildy 1 G. & 
 
 (2) Ex parte Marshall, 1 G. & J. 221.
 
 224. 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Executors 
 and trus- 
 tees. 
 
 or a cre- 
 ditor. 
 
 Where 
 one trus- 
 tee lends 
 trust mo- 
 ney to the 
 other. 
 Cestui que 
 trust 
 
 shouldjoin 
 in proof. 
 
 As to ap- 
 pointment 
 ofreceiver. 
 
 How di- 
 vidends 
 ordered to 
 be paid. 
 
 either to replace the fund — or to account for what he 
 made of it — as it should appear most for the benefit of 
 the cestui que trust. (!) And it seems, that such an order 
 for proof may be obtained in the first instance, without a 
 previous application (2) to the commissioners. In one case, 
 where the property was small, a creditor of the testator was 
 permitted to prove for the amount of such part of the tes- 
 tator's property, as had come to the bankrupt's hands. (3) 
 
 Where a sum was paid to one trustee on account of the 
 trust fund, and he lent it to the other trustee upon note, 
 and both became bankrupt, — proof was permitted to be 
 made for the amount under each commission. (4) 
 
 Where a trustee himself proves under a commission, the 
 cestui que trust should join in the proof; but if there is any 
 difficulty in obtaining the attendance of the latter, then an 
 order may be obtained for the trustee to prove alone. (5) 
 
 In some cases a receiver has been appointed, on petition^ 
 to prove what is due, and to receive the dividends on the 
 pi'oof. (6) But where the testator's property is consider- 
 able, or it is necessary to take an account of the assets, 
 Lord Thurlow held, that the creditors of the testator must 
 proceed bi/ bill {7); and it has also more recently been 
 decided by Lord Eldon, that a receiver can only be ap- 
 pointed In/ bill. (8) In these cases the Lord Chancellor 
 generally directs, for the security of the parties interested, 
 that the dividends shall be paid into the Bank by the 
 assignees, subject to further orders. (9) But where a 
 cestid que trust is entitled absolutely to any share in the 
 trust property, and has attained twenty-one, the assignees 
 
 (1) Ex parte Shakeskr/ft, 3 Bro. 
 197. Ex parte Fairchild, 1 G. & 
 J. 221. 
 
 (2) Ex parte Moody. Ex parte 
 Preston, 2 Rose, 413. 
 
 (3) Ex parte Leeke, 2 Bro. 596. 
 
 (4) Keble v. Thompson, 3 Bro. 
 112. 
 
 (5) Ex parte Dubois, 1 Cox, 3 10. 
 Beardmore v. Cruttenden, C. B. L, 
 211. Green, 149. 
 
 (6) Ex parte Ellis, 1 Atk. 101. 
 Ex parte Llewellyn, 1 C. B. L. 137. 
 
 (7) Ex parte Leeke, supra. 
 
 (8) Ex parte Tupjter, 1 Rose, 
 179.; and see ex parte Markland, 
 2 P. Wms. 546. Ex parte Whil- 
 
 field, 2 Atk. 5] 5, 
 
 (9) Ex parte Leeke, supra. Ex 
 parte Brookes, C. B. L, 138. Ex 
 parte Shakeshaft. Ex parte Moody, 
 Ex parte Fairchild, supra, 1 G. & J. 
 167.
 
 Sect. 10.] OF THE PROOF OF DEUTS. 226 
 
 in that case, will be ordered to pay to him at once the Executors 
 dividends payable upon his proof. (1) ^^^^ ' 
 
 If a legacy be given to a legatee, payable at twenty-one, 
 
 or marriage, with interest — it is a vested legacy, and the jeJi^'v^ 
 
 legatee may prove it under a commission against tlie exe- proveable 
 
 cutor; — or, if he has not attained twenty-one, or been "y^"ele- 
 
 . . Ml 1 I gatee, or 
 
 married, his guardian, upon petition, will then be per- his guar- 
 
 mitted to prove it. (2) And where five children of a bank- ^'^"• 
 rupt had vested interests under a will (of which the bank- 
 rupt was executor) in certain trnst funds after the death of 
 their mother, subject to a power of appointment to be 
 exercised by their father and mother, or the survivor of 
 them, and the bankrupt had converted the trust property 
 to his own use, — it was held, that as no appointment 
 had been made, each of the five children was entitled to 
 prove one fifth part of the trust funds against the estate of 
 the bankrupt, notwithstanding their father (who was the 
 bankrupt) and their mother were both still alive. (3) 
 
 Where an executor, who was directed to carry on his Where an 
 testator's partnership trade, exceeded his authority, by em- gxc'^^d^Hs 
 ploying the assets in the trade to an extent not warranted authority 
 
 by the will — and the surviving partner and the executor be- '1 ^^ ^"'' 
 •' " ^ ... ploynient 
 
 came bankrupt — the bankrupt executor in this case was of the 
 
 allowed to prove the excess of the assets so employed under assets in 
 
 a joint commission, against him andthesurvivingpartner.(4') excess 
 
 But if an executor, who is directed to carry on his tes- '"^7 be 
 
 tator's trade, do not go beyond his authority, then the ^ / 
 
 assets employed by him in the trade can never be proved when he 
 
 under the commission; for they are in this case a part of "°^* "^.^ 
 
 , , ... exceed his 
 
 the capital of the trade to pay its debts; but this is not the authority. 
 
 case, where he commits a breach of trust, by using the as- 
 sets to an extent not authorized by the will. (5) 
 
 If the bankrupt, besides being executor, is beneficially Where 
 '■ executor 
 
 (1) Ex parte KettlcweU, 1 G. & (4) Ex parte Richardson, Buck. 
 J. 323. 203. 421. Ex parte Garland, 
 
 (2) Walcottv. Hall, 2 Bi-o. 505. 10 Ves. 110. Contra Hankcij v. 
 (5) Ex parte Beilhy, 1 G. & J. Hammon, ibid. 210. 
 
 167. (5) Ibid. 209.
 
 226 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Executors 
 and trus- 
 tees, 
 
 is also be- 
 neficially 
 entitled, 
 and com- 
 mits a de- 
 vastavit. 
 
 Where an 
 executrix 
 marries a 
 bankrupt. 
 
 Costs not 
 proveable, 
 where ex- 
 ecutor 
 pleads a 
 false plea. 
 Where 
 the credi- 
 tor of a 
 bankrupt 
 dies, his 
 executor 
 may prove. 
 
 Where the 
 bankrupt a 
 co-exe- 
 cutor of 
 the cre- 
 ditor, then 
 the other 
 executor 
 ordered to 
 prove. 
 
 entitled to any part of the testator's property — his interest, 
 of course, passes to the assignees ; and the Lord Chan- 
 cellor will, if necessary, let the assignees sue in the bank- 
 rupt's name, in order to get in the effects. ( 1 ) And though 
 the executor had committed a devastavit) who was entitled 
 in his own right to a specific legacy, which was sold by 
 his assignees, — it was held, that the produce of such sale 
 in their hands was not liable to make good the devastavit ; 
 but that the parties beneficially entitled must prove to the 
 amount of the devastavit. (2) 
 
 If an executrix marries, and her husband becomes bank- 
 rupt, having previously admitted assets, in answer to a bill 
 filed against them, — the assets in this case become a debt of 
 the husband, and may be proved under his commission. (3) 
 
 Costs of suit incurred by a bankrupt executor in an 
 action (brought against him after the issuing of the com- 
 mission) in which he pleads a false plea, are not proveable 
 under the commission. (4) 
 
 If the creditor of the bankrupt is dead, the proper person 
 to prove is, of course, the creditor's executor or adminis- 
 trator. And where a debt was forgiven the bankrupt by a 
 testator, upon condition that the bankrupt should pay an 
 annuity to his sister, but if he failed in doing so, the 
 executrix was to call in the whole debt — and default was 
 made by the bankrupt in the payment of the annuity ■ — the 
 executrix was permitted in this case to prove the debt. (5) 
 Where the bankrupt, and another person who was solvent, 
 were executors of the creditor. Lord Thurlow permitted 
 the solvent executor to prove the debt under the commis- 
 sion, notwithstanding a pending suit in the ecclesiastical 
 court as to the executorship: but the dividends were 
 ordered to be paid into the Bank, pending the contest in 
 the ecclesiastical court. (6) 
 
 (1) Ex parte Butler, Amb. 74. 
 Bedford v. Woodham, 4 Ves. 40. 
 
 (2) Geary v. Beaumont, 3 Meriv. 
 451. 
 
 (3) iSch.&Lef. 173. 
 
 (4) Howard v. Jcmmet, 5 Burr. 
 1568. 
 
 (5) Ex parte English, 2 Bro. 
 G09. ; and see ex parte Bridges, 
 4Madd.269. ante. 
 
 (6) Ex parte John Shakeshafl, 
 3 Bro. 198.
 
 Sect. 11.] OF THE PROOF OF DEBTS. 227 
 
 Where an assignee becomes bankrupt with monies in his Executors 
 hands, his estate will not be entitled to any dividends on ^"^ 
 the proof made by him under the estate of which he was 
 
 assignee, until full reimbursement is made to the last **P^'"^''*" 
 °, , assignee 
 
 mentioned estate of the money, which he had in his hands becomes 
 at the time of his bankruptcy. (1 ) bankrupt. 
 
 Section XI. 
 
 Creditors hy Annuities. 
 
 The original cases in Bankruptcy, as to the proof of Former 
 annuity bonds forfeited before the bankruptcy of the ["'^^^''^^p'^" 
 grantor of the annuity, considered the penalty of the bond 
 as the debt — not indeed as wholly receivable by the 
 obligee, but to stand as a security for the payment of the 
 annuity ; — and I^ord Hardwicke's first rule was, if there 
 were sufficient assets, merely to order the annuity to be 
 paid half yearly, down to the death of the annuitant. But 
 this mode of proceeding was afterwards altered (2) by him, 
 for the better convenience of distribution. For, if the an- 
 nuity was to be received from time to time as an accruing 
 debt on the estate, that would tend to make the division of 
 the estate perpetual ; and there could, at all events, be no 
 final division during the annuitant's life. To avoid, there- 
 fore, this inconvenience — and in order to attain a dividend 
 at a certain time, the Courts afterwards allowed a value to 
 be set on the annuity (3), and the annuitant to come in as 
 a creditor for that value under the commission. There 49G.S. 
 was also a distinction made before the 49 G. 3. c. ] 21. s. 1 7. § '7^ 
 (which was the first act that authorised direct proof of 
 annuities eo nomine) between a covenant, and a bond, for 
 the payment of an annuity : in the first case the arrears 
 only of the annuity could be proved — in the last, if the 
 
 (l)Exparte^igwo/c;,2Mad.470. (5) Ex parte Arllsy 2Ves.4S9, 
 <2) Per Lord Eldon, 1 9 Ves. 245. Cottrdl v. Hooke, Doujx. 97. 
 
 2 2
 
 228 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Annuities. 
 
 Provision 
 of the new 
 statute. 
 
 Mode of 
 ascertain- 
 ing the 
 value. 
 
 bond was forfeited befo)-e the bankruptcy, then the value 
 of the annuity, as well as the arrears, was proveable. ( 1 ) 
 And this rule of setting a value on the annuity was con- 
 fined to cases, where the annuity was secured by some 
 instrument with a penalty, which had become forfeited 
 BEFORE the bankruptcy of the grantor, by his permit- 
 ting the annuity to become in arrear and unpaid. (2) For 
 where there were no arrears due at the time of the bank- 
 ruptcy, it was considered in some cases, that there was 
 no debt then due at law, but a mere contingency as to the 
 penalty becoming a debt injiituro, by the subsequent non- 
 payment of the annuity. (3) If a forfeiture, however, had 
 once happened, the receiving payment afterwards of the 
 arrears was held not to be such a waiver of the forfeiture, 
 as to take the case out of the general rule. (4) 
 
 The new statute adopts a similar provision for the proof 
 of annuities, as was introduced by the 49 G. 3. c. 121. s. 17., 
 with additional directions as to the mode of calculating the 
 value. Thus, by sect. 54. it is enacted, that by whatever 
 assurance the annuity is secured, and whether there are, or 
 are not, any arrears due at the time of the bankruptcy, the 
 annuity creditor may prove for the value of the annuity ; 
 which value the commissioners are to ascertain, with regard 
 to the original price given for the annuity, deducting 
 therefrom such diminution in the value, as shall have been 
 caused by the lapse of time, since the grant of the annuity 
 to the date of the commission. 
 
 This mode of ascertaining the value is consistent with 
 the rule laid down previously by Lord Eldon, — who held. 
 
 (1) Ex parte Thistlewood, Doug. 
 249. 
 
 (2) Ex parte Le Compte, 1 Atk. 
 251. Ex parte Bolton, Ibid. Ex 
 parte Burrow, 1 Bro. 268. Ex 
 parte Roivlatt, 2 Rose, 416.; and 
 see CuUen, 92. 
 
 (3) Perkins v. Kempland, 2 Bl. 
 1106.; but see Pattison v.Bankes, 
 Cowp. 540., \vhcre there was no 
 forfeiture before the bankruptcy, 
 
 and yet the bond was held prove- 
 able under the 7 G.l. c.51., as be- 
 ing for a debt payable at a future 
 day. See also Brooks v. Lloyd, 
 1 T. R. 17., which was the case of 
 a bond payable by instalments, and 
 which was held proveable for the 
 same reason, though there was no 
 defpult before the bankruptcy. 
 
 (4) IVi/lliev. Wilkes, Doug. 519. 
 2BI. 1108.
 
 ^eCt. IJ.] OF THE PROOF OF DEBTS. 229 
 
 that if there were not any special circumstances, the com- Anmdtics. 
 missioners should ascertain the value upon the basis of the 
 original sum paid, qualified by the time of enjoyment. (1) 
 And the state of the money market is not a circumstance, 
 which can affect this rule. (2) Under some ciixumstances 
 however, the rule, if strictly followed, might be productive 
 of injustice. As, where a person in a bad state of health 
 (which is known to the grantor) purchases an annuity of 
 hira for a sum less than the usual market price, and soon 
 afterwards recovers, whereby the value of the annuity is, of 
 course, considerably improved; — in this case, as the pro- 
 bability was (when the annuity was granted) that the pur- 
 chase would turn out to the disadvantage of the annuitant, 
 it seems but just, that he should be allowed the benefit of 
 his restoration to health having operated in his favour. (3) 
 And, indeed, in such a case before the new statute. Lord 
 Eldon permitted proof to be made, upon a calculation with 
 reference to the age and improved health of the annuitant, 
 notwithstanding the value so ascertained exceeded the 
 price originally given for the annuity, and the grantee 
 had enjoyed the annuity for the space of two years. (4) 
 Sir J. Leach, however, in a recent case decided, that the 
 commissioners are now precluded by the 54th section 
 of the new statute, from taking into consideration the 
 altered state of the health of the annuitant: and that 
 where the consideration for the annuity is not money, but 
 property, the price paid by the grantee for that property is 
 not the criterion of value, if such value be altered by ac- 
 cidental circumstances. (5) In a case of a peculiar kind 
 which came before Lord Thurlow, he permitted the whole 
 penalty of an annuity bond to be proved, without regard to 
 the time of enjoyment, and without any deduction of the 
 payment of the annuity. (6) 
 
 Where an annuity creditor applied to prove, and was Where 
 
 annuity 
 
 (1) Ex parte Whitehead, 19 Ves, (s) Ex parte Thisllewood, 1 Rose, 
 557. 2 Rose, 358. 1 Meriv. lO. 290. 19 Ves. 236. 
 
 127.; and see 1 Atk. 251. (4) Ibid. 
 
 (2) Ex parte Webb, 2 G & J. 2 9. (5) Ex parte Fisher, S G. k J. 1 02. 
 
 (G) Ex parte £7ig/i*(%, 2Bro. 609. 
 VOL. I. * Q 3
 
 230 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Annuiticx, 
 
 void 
 
 under the 
 annuity 
 act, gran- 
 tee may 
 prove ba- 
 lance of 
 original 
 consider- 
 ation. 
 
 Where 
 consider- 
 ation not 
 proveable. 
 
 Where 
 annuities 
 granted by 
 bankrupt 
 for inade- 
 quate con- 
 aideration. 
 
 Annuity 
 creditors 
 now upon 
 the same 
 footing as 
 other 
 creditors. 
 
 refused, on the old principle, that the bond was not then 
 forfeited — but it appeared afterwards that the bond was 
 in reality void under the provisions of the annuity act (1) — 
 and he then petitioned to prove for the sum actually ad- 
 vanced — Lord Loughborough dismissed the petition, 
 saying, that as he had insisted on his security at the date 
 of thccommission, it was not the same debt. (2) But in a 
 similar case before Lord Eldon, where the creditor had not 
 insisted on his security, the grantee was permitted to prove 
 the balance remaining due of the money advanced. (3) 
 
 Where B. purchased an annuity of C. through the 
 agency of the bankrupts, and the consideration money was 
 received by them, as agents for C, and placed to C.'s ac- 
 count, — it was held, that B. could not prove the consider- 
 ation paid, unless the grant of the annuity was merely 
 colourable, and contrived by the bankrupt for the purpose 
 of obtaining B.'s money for their own use. (4) 
 
 A deposit of deeds, as a further security for an annuity 
 previously granted, we have seen (5), is not within the 
 provisions of the annuity act, — and such deeds, therefore, 
 need not be registered. 
 
 Where it appears that annuities have been granted by the 
 bankrupt for an inadequate consideration — such as having 
 been bought at only five years' purchase for a good life — 
 though the assignees may not object to the proof, yet a special 
 meeting of the creditors should be called to decide, whether 
 the assignees should consent or not to admit such proof. (6) 
 
 Annuity creditors are not compelled^ any more than any 
 other creditor, to come in under the commission, but may 
 sue the bankrupt if they choose, and decline to prove. 
 But they cannot sue any surety for the annuity without 
 proving; nor can they now proceed against the bankrupt 
 (as they could formerly under a deed of covenant for 
 securing (7) the annuity) after he has obtained his certifi- 
 
 (1) 17 G. 3. C.26. 
 
 (2) Ex parte James, 5 Ves. 708. 
 
 (3) Ex parte Wright, 19 Ves. 255.; 
 and see Shove v. Webb, 1 T. R. 752. 
 Walker v. Lkcarry, 6 Esp 98. Ex 
 parte Brockliss, Buck. 406- 
 
 (4) Ex parte Shaiv, 2 G.&J. 106. 
 
 (5) Ante, 206. 
 
 (6) Ex parte Cator, 1 Bro. 267. 
 
 (7) Fletcher v. Bathurst, 7 Vin. 
 7 1 . pi. 4, 4 Burr. 2446. Cottrcll v. 
 Hookc, Douff. 93.
 
 Sect. 11.] OF THE PROOF OF DEBTS. 251 
 
 cate ; for, by the present act, the certificate is made a dis- Annuities. 
 charge from all claims, either of the annuitant or the 
 surety, in respect of the annuity. (1) 
 
 Where the annuity is secured on freehold or leasehold ^^here 
 property, which is insufficient to satisfy the arrears due, as charged 
 well as the value of the annuity, an order will be made for <^" lands, 
 the sale of the property on which the annuity is charged ; 
 and the gi'antee will afterwards be allowed to prove for 
 the residue. (2) 
 
 A mere stipulation for the payment of annual interest, Anengage- 
 for the forbearance of a sum of money, cannot be proved pay annual 
 as an annuity ; for it is not an annuity in any reasonable interest 
 sense of the term — neither does it come within the mean proved ^ 
 ing of the statute. An annuity implies, that the princi- an annuity. 
 pal sum is gone for ever, and is to be satisfied by yearly 
 periodical payments. (3) 
 
 It has been stated, that arrears of an annuity subse- 
 quent to the commission are not the subject of pi-oof (4-); 
 but no authority is cited for this position, which, indeed, 
 does not appear very reasonable in itself. For, as the 
 creditor, in proving for the entire value of the annuity, 
 proves in fact for the probable^ though at the same time 
 the uncertain, amount o^ aWJitfure payments — which pay- 
 ments would, of course, when they fell due, become of 
 themselves mrears subsequent to the commission — it is some- 
 what inconsistent to shut him out from proof of arrears 
 which are actually due, and in regard to which there can 
 be, therefore, no uncertainty as to the amount. 
 
 The new statute provides, also, for the relief of the Provision 
 surety for the payment of an annuity by the bankrupt, [l^^^ ^"'^^" 
 (which the 49 G. 3. c. 121. was deficient in) as well as for 
 the relief of the bankrupt himself from the contingent 
 claims of the surety. For by section 55. (besides declaring 
 
 (1) Section 55.; and see also (3) Winter v. Mouselci/, 2 B. & 
 Sectio7i 121. A. 806, 807. 
 
 (2) Ex parte Kei/, 1 Madd. 426. (4) 1 G. & J. 346., note (a). 
 Ex parte Slack, 1 G. & J. 346. Eden's B. L, 11 5. 
 
 O 4
 
 232 OF THE PItOOF OF DEBTS. [Cll. 9. 
 
 Annuiiies. it to be unlawful for any person entitled to an annuitj 
 granted by the bankrupt to sue any person, who may be a 
 collateral surety for the payment of the annuity, until the 
 annuitant shall have proved under the commission for the 
 
 whendis- value of the annuity) it is enacted, that if the surety, 
 
 charged; j^fj-g^. g^.}^ proof, shall pay the amount so proved, he is 
 discharged from all claims in respect of the annuity ; and 
 he is only liable to be sued for the accruing payments, in 
 the event of his failing to pay the sum proved, before any 
 payment of the annuity subsequent to the bankruptcy be- 
 comes due; — nor is he then liable to j^ay beyond the 
 amount so proved, with interest at 4 per cent, from the time 
 of his receiving notice of such proof, and of the amount 
 
 when may thereof. And after such payment or satisfaction by the 
 
 stand m surety, he may then stand in the place of the annuitant, in 
 the place p i ■- i r i • i 
 
 of the an- respect or the proof, to the amount ot the sum so paid or 
 
 nuitaat in satisfied ; and the certificate of the bankrupt is then declared 
 
 his proof. ^^ '^^ ^ discharge from all claims of the surety, as well as 
 
 of the annuitant, in respect of the annuity. The surety is 
 
 also entitled to credit in account with the annuitant, for 
 
 any dividend which the latter may have received, before 
 
 he can be called upon to pay the whole sum proved by 
 
 the annuitant under the commission. 
 
 When It may still, however, be a doubtful point, when the 
 
 annuity annuity creditor, after provino; the value of the annuity, 
 creditor . . ■ n , ,• • , i , • , 
 
 comes ivnd receiving all the dividends he can receive upon sucli 
 
 upon the proof, comes upon the surety for the deficiency after the 
 surety for J , . , , . "" .„ ■ i " • , 
 
 any defici- bankrupt has obtainetl his certihcate, — whether, in such a 
 
 ency after case, the certificate would discharge the bankrupt from the 
 
 bankrupt , . ^ i -n t i • i- i 
 
 has e;ot his claims OI the surety, lor, ir the annuity creditor chooses 
 
 certificate, to avail himself to the extent of his proof, without giving 
 
 whether ^"y "ot'ce to the suret}', or making any claim against him 
 
 bankrupt until after a final dividend is declared, the surety would 
 
 a^to^thr have no opportunity of proving under the commission. It 
 
 surety. might, indeed, be held, that in order to acquit himself, as 
 
 against the annuity creditor, and to entitle himself to any 
 
 claim against the bankrupt, he is bound to take immediate 
 
 It
 
 Sect. 12.] OF TFiE PROOF OF DEBTS. 233 
 
 notice of the annuitant's proof, and to pay the amount so Annuities. 
 proved; for, by the above section, the annuitant is not 
 compelled to give the surety notice of the amount of the 
 proof, except indeed so far as to entitle himself to interest 
 from the surety upon the sum proved. (1) 
 
 Section XII. 
 Apprentices, Clerks, Scrxnnis, and Children. 
 
 Where a sum of money had been paid as a premium Former 
 
 with an apprentice, and his master became bankrupt, it Practice as 
 . PI • • 1 r 1 to appren- 
 
 was the practice or the commissioners, berore the new tices. 
 
 statute, to recommend it to the creditors to allow the 
 apprentice a gross sum out of the estate, for the purpose 
 of binding him to another master — instead of obliging the 
 apprentice to come in as a creditor under the com- 
 mission. (2) But this proceeding, though equitable and 
 just in itself, was only matter of indulgence, and not of 
 right ; for if it was objected to, the Court could, in strict- 
 ness, only order the apprentice to be admitted as a cre- 
 ditor. (3) The bankruptcy, also, of the master was held 
 no discharge, in law, of the apprentice's indentures. (4) 
 But now, by the 49/fA section of the new act, it is declai'ed, Discharged 
 that the commission shall enure as a complete discharge of "^^i^tei^s 
 the indentures of an apprentice; and if any sum shall have bank- 
 been paid as an apprentice fee, the commissioners may, "^"^ '^^f 
 upon proof thereof, order any sum to be paid to or for the premium 
 use of the apprentice which they shall think reasonable, »>''iy ^^ r^- 
 regard being had, in estimating such sum, to the amount of 
 the premium which has been paid, and to the time that the 
 apprentice shall have resided with the bankrupt. 
 
 (l) And see Watlchis v. Flana- (2) Bar wells. Ward, lAtk. 261. 
 gan, 1 Bing. 413. 1 G. & J. 199. (3) Ex parte Sundbi/, lAtk. 149. 
 ".3B. &A. 1S6. Welsh v. Welsh, (4) Buckington v. Shepton, 
 
 4M, &S. 333. 8 Mod. 235. Str. 582. 2 Ld. Raym. 
 
 1352.
 
 234? OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Children. With respect to servants^ also, — by the 48^^ section of 
 
 p'TT J the act, a power is given to the commissioners to order six 
 
 servants months' wages, or salary, to be paid to any servant, or clerk, 
 
 ^^y ''Th ' '^^ *^^ bankrupt ; but if more than this is due, then the 
 
 wages. clerk, or servant, must prove for the difference. 
 
 A child A child living with the father, and earning money for 
 
 may, m itself, may be admitted as a creditor under the com- 
 
 sonie cases, ' j 
 
 be ad- mission against the father, if he has received that money 
 
 mitted a ^ ^j^^ child's use. But Lord Hardwicke said he was 
 creditor. 
 
 under some difficulty in making such an order, for the 
 
 sake of the precedent ; as it might be dangerous in London 
 to lay it down as a general rule, that every child who 
 earns money whilst living with his father, which the latter 
 receives, may claim it as a debt in the event of his father's 
 bankruptcy; for a father frequently, as was remarked in 
 that case, sends out his son to work as a journeyman, and 
 his earnings then are supposed to belong to the father. (1) 
 And where a son had lived with his father seven years 
 as a clerk, receiving only board and lodging, and there 
 was no actual contract for wages — though the father 
 swore it was always his intention to pay him something 
 for his services, and the assignees did not object — yet 
 Lord Eldon, though he lamented the hardness of the case, 
 said, that as there was in reality no contract for wages, he 
 could make no order for the son to prove. (2) 
 
 Debts owing by the bankrupt to children, or other 
 relations, are always watched in Bankruptcy with great sus- 
 picion — with greater, perhaps, than the justice of the case 
 frequently requires ; since a man in pecuniary distress, as 
 has been well observed, is more likely to apply to his 
 relations, than to strangers, for that assistance of which he 
 is in want. (3) 
 
 ( 1 ) Ex parte Macklin, 2 Ves. 675. he had received from the managers 
 This case arose out of the bank- of different theatres, 
 riiptcy of Macklin, the comedian, (2) Ex parte Glover, 1 Mont, 
 and the petitioner was his daugh- Dig. 165. 
 
 ter; whose earnings, as an actress, (3) Per Lord Eldon, 1 Ves.& B. 
 
 48.
 
 Sect. 13, l*.] OF THE PROOF OF DEBTS, 2SS 
 
 Section XIIL 
 Awa7-ds. 
 
 An award, if made before bankruptcy, creates such a 
 debt as may be proved under the commission. Therefore 
 where a man was taken upon an attachment for not per- 
 forming an award, and afterwards became bankrupt and 
 obtained his certificate, he was ordered on motion to be 
 discharged. For though an attachment is in the nature of 
 a contempt, which is not purged by bankruptcy, yet an 
 action of debt will he on an award j and the bankrupt 
 ought not to be arrested, prosecuted, or impleaded (1) for 
 any debt due before the bankruptcy. 
 
 But where proof was admitted upon an award made 
 after the bankruptcy, the proof was in that case ordered to 
 be expunged. (2) 
 
 Section XIV. 
 
 Bo7ids. 
 
 A creditor by bond is entitled to prove his demand 
 against all the parties to it, and to receive dividends upon 
 the whole sum from each estate, provided he does not 
 receive more than 205. in the pound. If he does receive 
 more, he is accountable for the surplus. And if he has 
 I'eceived any part of the debt before he applies to prove, 
 he can then only prove and receive dividends for the 
 residue due to him. (3) 
 
 (1) J9flr^Y?r's case, sStr. 1152. (3) Ex parte Wildman, 1 Atk. 
 
 (2) Ex parte Kemshcad, 1 Rose, 109. 2 Ves. 1 13. 
 149.
 
 236 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Bonds. 
 
 When 
 bond as- 
 signed, 
 assignor 
 must join 
 in the 
 jiroof. 
 
 Bond pay- 
 able on 
 demand, 
 whether 
 proveable 
 without 
 demand 
 made. 
 
 Bond to 
 replace 
 stock 
 proveable. 
 
 As to cal- 
 culating 
 the value 
 of the 
 stock. 
 
 A bond, though not strictly assignable at law, may never- 
 theless be pi-Qved by the assignee under a commission of 
 bankruptcy against the obligor; but the assignor must in 
 this case join with the assignee in the usual deposition for 
 the proof of debts — namely, that he hath not received the 
 debt, or any part thereof, or any security or satisfaction for 
 the same. (1) 
 
 If a bond be payable generally on demand, and interest 
 has been paid upon it — though no demand has actually been 
 made — it may still be proved under the commission. (2) 
 But where a bond was given by the bankrupt, for the pay- 
 ment of the interest on the principal debt by half yearly 
 payments on Lady Day and Michaelmas, or 'within tisoenty 
 days next after demand^ and for payment of the principal to 
 the executors, of the obligee — and no demand had been ever 
 made for the interest — the bond was in this case held not to 
 be forfeited, and the obligee incapable of proving it under 
 the commission. (3) 
 
 A bond to replace stock by a given day, if it is forfeited 
 before the bankruptcy, is proveable. (4-) And where such 
 a bond was also conditioned for making good the dividends 
 payable in the meantime, and the obligor became a bank- 
 rupt after the day mentioned in the condition, — Lord Eldon 
 admitted proof for the amount of the dividends before the 
 bankruptcy, and also for the value of the stock at the date 
 of the commission (5), by analogy to the case of annuities. 
 A somewhat different mode of calculation, however, was 
 recently adopted by the Court of King's Bench. In this 
 case the bankrupts had covenanted to replace stock by four 
 instalments : one was replaced when due, two others had 
 become due before the issuing of the commission, and the 
 day for replacing the remaining instalment had not then 
 
 (1) C. B.L. 146, (4) Ex parte Le'itch, C. B. L. 
 
 (2) Ex parte Spurling, C. B. L. 149. 
 
 146. (5) Ex parte Dai/, ?Ves, 301.; 
 
 (5) Winter \. Moiiscli/, 2 B. & und see Shepkcrdv.jo/mson, 2Easty 
 
 A. 802. 211.
 
 Sect. 14-.] OF THE PROOF OF DEBTS. 237 
 
 arrived; and the Court decided, tliat the creditor might Bonds. 
 prove for the value of the two instalments which ought to 
 have been transferred on the days passed before the bank- 
 ruptcy, to be calculated at the market price of the stock on 
 those days respectively ; and that the value of the remain- 
 ing instalment (which was not then due) was to be calcu- 
 lated at the price on the day of issuing the commission, 
 with a rebate for the interval, between that day and the day 
 appointed for replacing the last instalment.(l) Where a 
 bankrupt before his bankruptcy, on a loan of stock, gave a 
 bond to re-transfer the principal within three years, and to 
 pay the amount of the dividends in the meantime, and also 
 agreed to convey a real estate as a security, and no re- 
 transfer was made, nor any dividends paid, — it was held, 
 that the estate should be sold, the amount of the dividends 
 paid out of the produce, and that other stock should be 
 purchased with the residue — and if not sufficient to re- 
 purchase the whole principal stock, that proof should be 
 made for the deficiency ; and the assignees were held not 
 entitled to have three years to re-transfer the stock. (2) 
 
 A voluntary bond, given without a consideration, may Voluntary 
 be proved, not for the purpose of receiving a dividend with "^onds, 
 the other creditors, but for payment out of the surplus. (3) 
 But a bond, given for the arrears of a voluntary bond, is 
 held to be a bond for a valuable consideration, and, as such, 
 may be proved for the purpose of receiving a dividend. (4) 
 
 With respect to hail-bonds, it lias been determined, that Bail- 
 where a defendant gives a bail-bond to the sheriff, which ^°"^^'* 
 is forfeited before his bankruptcy by non-appearance, and if forfeited 
 an action is brought against him afterwards upon the bond — before 
 whether the judgment is signed before, or after, the bank- ruptcy. 
 rupt obtains his certificate — the debt on the bond is barred, 
 and is, therefore, proveable under the commission — on the 
 
 (1) Parker v. Ramsbottom, 5 B. (3) Gardner's Assignees v. Skin- 
 Si C. 257. ner, 2 Sch. & Lef. 228. 
 
 (2) Ex parte Fisher, 3 Mad. 159. (4) Gil/ham v. Lock, 9 Ves.612. 
 Buck. 188.
 
 238 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Bonds. principle, that when the penalty is forfeited the debt be- 
 comes due, though execution cannot be taken out for 
 more than the damages (1) — and that the substance of the 
 action on the bail-bond is the same, as that on the original 
 debt. But if the bail-bond is not forfeited until after the 
 bankruptcy of the defendant, the bond has been held, in 
 that case, not proveable under the commission, as it was 
 then considered a new and distinct cause of action. (2) So, 
 where a bankrupt before his bankruptcy, upon being sued 
 by a creditor, had given a bond under the 4 Geo. 3. c. 33., 
 (the bankrupt being a member of parliament) for the pay- 
 ment of such sum as should be recovered in the action, 
 together with the costs; and after his bankruptcy, but 
 before his certificate, judgment was obtained in such ac- 
 tion, — it was held, that a bond of this description, being 
 analoffous to a bail-bond, could not under these circum- 
 stances be proved under the commission. (3) But now, 
 it is apprehended, though a bail-bond is not forfeited until 
 after the bankruptcy of the defendant, it may, under the 
 5Gth section of the new statute, be proved under the com- 
 mission, like any other contingent debt after the happening 
 of the contingency. 
 
 As to the right of the bail themselves to prove under 
 
 a commission against their principal, see post, title 
 
 " Sureties" 
 
 Bond to Where an assignee of a lease gave a bond to the lessee, 
 
 indemnify for payment of rent and performance of the covenants 
 
 covenants '^^^^ ^^^ lessor, and became bankrupt, after the bond had 
 
 in a lease, become forfeited by the non-payment of the rent, — the 
 
 able^'^^^^' bond was held incapable of valuation, and, consequently, 
 
 not proveable under the commission. And though the 
 
 lessee may be liable for damages to the lessor, by reason of 
 
 the non-payment of the rent before the bankruptcy, yet 
 
 (l) Bonteflour \. Coates, Cowp. (2) Cockerillv. Owston, 1 Burr. 
 
 25. Dimsdale v. Eames, 2 B. & 436. 
 
 B. 8. 4 Moore, 350. Coulson v. (3) Jameson v. Campbell, 5 B. & 
 
 Hammon, 2 B. & C. 626. A. 250. l Bing. 320.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 239 
 
 these cannot be proved unless they are actually paid by the Bonds. 
 lessee to the lessor. ( 1 ) 
 
 And see further as to bond creditors, " Mairiage 
 Articles^^ " Anmdties^'' " Contingent Debts,' " Insurance" 
 " Sureties" 
 
 Section XV. 
 
 Bills of Exchange and Promissory Notes, and herein of 
 Cross Pajoer Deinands. 
 
 The holder of a bill of exchange is, like the creditor on A holder 
 
 the bond, entitled to prove the amount of it acfainst all the "^^ prove 
 
 ' / ^ ^ against all 
 
 parties whom he might proceed against at law, whether the parties 
 
 drawer, acceptor, or indorser ; and he may receive a '^ "'^ „ 
 T . 1 1 /> 1 r> -11 amount of 
 
 dividend from the estate oi each on the amount, provided the bill ; 
 
 he does not in the whole receive more than 205. in the 
 
 pound. (2) And it makes no difference, whether the bill is 
 
 an accommodation bill, or whether the holder has given less 
 
 than the amount for it ; except that in this last case, as except 
 
 against the estate of the person from whom he received it, ^^"^^^ the 
 
 he can only prove the exact sum due to him, and is not whom he 
 
 entitled to more than 205. in the pound upon the consider- ^°?'^ '*» — 
 
 when he 
 ation which he gave for it. (3) Thus, where the bankrupt can only 
 
 delivers bills with his name upon them to A., for goods P^^^e for 
 furnished by A. to B., and such goods are afterwards balance, 
 partly paid for by B., A. can only prove for the sum re- 
 maining due for the goods, and not for the full amount of 
 the bills. But the case would be otherwise, if the bills had 
 been delivered by B. to A., without any communication be- 
 tween the bankrupt and A., — for, then, there would have 
 been no immediate contract between the bankrupt and A., 
 
 (1) Taylor v. Young, 5 B. & A. Ex parte Crossley. Ex parte Doj<;w- 
 521. 8Taunt.318. 2" Moore, 526. M;arrf, Ibid. 157. 3 Bro. 237. Ex 
 
 (2) English y. Barley, 2^. &^. parte Bloxham, 6 Ves. 449. 600. 
 62. 8 Ves. 53. Ex parte Earle, 5 Ves. 
 
 (5) Ex parte Ki7ig, C. B. L. 156. S33.
 
 240 
 
 OV THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Bills of 
 cxchanse. 
 
 After re- 
 ceiving 
 part, hol- 
 der can 
 only prove 
 for 
 balance. 
 
 And the 
 same after 
 declar- 
 ation of a 
 dividend 
 under an- 
 other com- 
 luission. 
 
 and the bankrupt would be consequently answerable to 
 the full amount of the bills. (1) So, where a bill is given 
 by the purchaser for the price of goods bought, and 
 the goods are afterwards paid for in part, the seller can 
 only prove under a commission against the purchaser for 
 the balance I'emaining due to him, and not for the whole 
 amount of the bill ; for the bill, so long as it remains in 
 the hands of the seller, represents only such part of the 
 price of the goods as remains unsatisfied. (2) 
 
 There is a distinction, also, in every case where the 
 holder of a bill applies to prove it, afta- receiving part of 
 the amount — and where he applies to prove, hcfore any 
 payment or composition upon it. If, at the time of proving, 
 he has received a part of it, he can then only prove for so 
 much as remains due; for, of course, he could not in such 
 a case swear, that the whole amount was due. (3) And 
 when a dividend is declared under another commission, 
 under which the holder has already proved the bill — 
 though the dividend has not been actually received, yet 
 the amount of it must be deducted from the bill, be- 
 fore it can be proved. (4) Nor does it vary this rule, 
 that the holder had been permitted to enter a claim for the 
 full amount of the bill, ■previously to the declaration of the 
 dividend under the other commission, and had also, pre- 
 viously to such declaration, made an affidavit in proof of 
 his debt, to be laid before the commissioners at the next 
 meeting. (5) In one case of this kind, however, where the 
 commissioners had improperly rejected the proof, and ad- 
 mitted the holder only to claim, and it was afterwards 
 decided, upon appeal, that the proof ought to have been 
 received — it was held that, though generally all payments 
 made previously to the proof must be deducted, yet, in 
 
 (1) Ex parte Reader, Buck. 581. 
 
 (2) Ibid. 
 
 (5) Cooper v. Pcpys, 1 Atk. 107. 
 
 (4) Ex parte Leers, 6 Vcs. 644. 
 
 Ex parte Todd, 2 Rose, 202. note. 
 
 (5) Ex parte Bank of Scotland, 
 2 Hose, 197. 19Ves. 510. Ex 
 parte Worrall, I Cox, 509.
 
 Sect. 15.] OF THE PROOI' OF DEBTS. 241 
 
 this case the proof would relate back to the time of the claim BUls of 
 
 — and that any sums partially paid after that time were to ^ -^^^^"g^ - 
 
 be considered as payments subsequent to the proof. (1) 
 
 But if the holder, a/Ze-r having proved for the amount Butifre- 
 
 of the bill, receives a part from any of the persons liable ^^}'^^^ 
 
 1 • Ml • 1 1 T • 1 1 1 1 , afterproofy 
 
 to pay it, he is still entitled to a dividend upon the whole entitled to 
 
 amount (2), provided it does not exceed 20^. in the pound ^ d'vulend 
 
 , ^ . , ^ on the 
 
 upon such part as remains due. whole. 
 
 Under very special circumstances, however, the holder Where 
 
 of a bill (notwithstanding; part payment from another "°'^^'" 
 
 ^ oil./ niay prove 
 
 party) has been allowed to prove for the whole amount for the 
 
 asrainst the acceptor^ and to stand as a trustee for such ^"^o^"', 
 
 1 11 1 -1 though 
 
 other party, as to all he receives above the real balance due part pre- 
 
 to himself upon it. As where A., being an indorsee of ^'io"siy 
 B. and C.'s acceptances for 1364/., sued out a separate 
 commission against B., but had previously by payments 
 received from D. (for whom he had discounted the bills) 
 reduced his debt to 420/., — it was held in this case, that A. 
 might prove for the whole amount of the acceptances, 
 standing as a trustee for D. for all above 420/. Lord 
 Eldon, in deciding this case, took into consideration that 
 A. (being the petitioning creditor) was the only joint cre- 
 ditor who could, come in with the separate creditors, and 
 receive dividends with them — and that as D. could not, 
 therefore, prove so as to receive any dividend, and the bills 
 would be discharged as against the bankrupt by the oper- 
 ation of the certificate, it was but just that D. should have 
 what benefit he could derive from the proof of A. (3) 
 
 As all debts payable at a future day, whether the ere- Bills, 
 ditor holds a written security or not, are now made prove- tho^igli 
 able (4) under the commission, a bill or note (though not y^^„ j^g ' 
 yet due) may of course be proved — and the holder will be proved. 
 
 (1) In re Gibson and Johnson, (3) Ex parte De Taslet, 1 Rose, 
 cit. per Ld. E. sRose, 201. 10.; and see ex parte Martin, 
 
 (2) Ex parte Wildman, 1 Atk. 2 Rose, 87. 
 
 109. 2 Ves. 113. 2 B. & P. 62, (4) Section 51. The 7 G. 1. 
 
 Formerly this was holden other- c. 31. was the first statute, that 
 
 wise. See ex parte Lefebvre, 2 P. made bills and notes not due 
 
 Wms. 407. proveable under a commission.
 
 242 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Sills of 
 
 exchange. 
 
 Objections 
 to proof. 
 
 Illegal con- 
 sideration. 
 
 Statute of 
 limit- 
 ations. 
 
 When bill 
 given in 
 payment 
 
 entitled to receive a dividend thereon generally with the 
 other creditors, deducting only a rebate of interest for 
 what he shall receive, at the rate of 51. per cent., to be 
 computed from the declaration of a dividend, up to the time 
 when the debt would become payable. And the holder of 
 a bill not due may prove the amount against the drawer, 
 though it is at the time uncertain, whether the acceptor 
 will pay it or not when it becomes due. (1) For the draw- 
 ing of a bill constitutes as much a debitiun hi prtrsetiti from 
 the drawer, as the acceptance of it does with regard to the 
 acceptor. (2) 
 
 Whatever would be a valid defence to an action on a 
 bill or note, is a valid objection to the proof of it under a 
 commission. Thus the illegality of the consideration, for 
 which the bill or note was given, will prevent the holder 
 from proving it in all cases, where he was cognizant of the 
 illegality at the time he took the bill or note; and in some 
 cases also — as where the legislature has declared the in- 
 strument to be absolutely void — whether he had knowledge 
 of the illegality or not. (3) 
 
 So where the statute of limitations would prevent the 
 holder from recovering at law, he is equally prevented from 
 proving on the bill or note. (4) The payment of a divi- 
 dend by the assignees of one of two makers of a joint pro- 
 missory note, has been held to prevent the other maker 
 from availing himself of the statute. (5) But this doctrine 
 has been since doubted, and has been refused to be extended 
 to a case, where the indorsee had proved for an antecedent 
 debt, and had merely exhibited the note as a security. (6) 
 
 A bill, in payment of which another bill has been de- 
 livered to the holder, cannot in general be proved ; but if 
 
 (1) Stareyy. Barns, 7 East, 435. 
 
 (2) Macarty v. Barrow, 2 Str. 
 949. 3 Wils. 16. 2 Barnard, 251. 5. 
 7 East, 437. n. Dub. tamen Lord 
 EUenborough, 7 East, 440. 
 
 (5) And see post. " Illegal and 
 void Debts." 
 (4) Ex \iarte Dewdney, IsVes. 
 
 479, Ex parte Seaman, Ibid. Ex 
 parte Rojfey, 2 Rose, 245. 
 
 (5) Jacfison v. Fairbank, 2 N. B. 
 340. 
 
 (6) Brandram v. Wharton, 1 B. 
 & A. 4G3., and see Atlcyns v. Tred- 
 gold, 2 B. & C. 23.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 243 
 
 the former bill is permitted to remain with the holder, then BUk and 
 if the latter bill is not paid, there is no objection to the " ° ^^' 
 proof of the former. ( 1 ) of another 
 
 If the holder enter into a composition with the acceptor 
 or maker of a bill or note, or agree to give him time for pounding 
 payment of it, without the previous assent of the other ^^''^h ac- 
 parties, he thereby discharges all those other parties. (2) ' 
 
 But where a note is made by one person as principal, and unless a 
 the others as sureties, then the compounding with one of surety, 
 the sureties will not have the effect of discharging the 
 principal, or indeed any of the other sureties ; for the dis- 
 charge of the surety is very different (3) from the discharge 
 of the principal. 
 
 The same laches, too, of the holder — which would dis- Laches, 
 charge any other party at law if he had continued solvent — 
 will equally preclude the holder from proving under a 
 commission against such party. Thus, if the holder Want of 
 neglect to give notice (4) of the dishonor of a bill to the "°^,'^^^5 
 drawer, and the indorsers — or do not at least use due 
 diligence in attempting to give notice (5) — they are thereby 
 respectively discharged. If, however, the acceptor has no 
 effects of the drawer's in his hands — in this case, the draiver 
 will not be discharged, as he cannot then be injured by the 
 want of notice (6) ; but the indorser in such a case is still 
 entitled to notice. (7) The onus of proving the bill to be 
 an accommodation bill, so as to dispense with the giving 
 notice, is thrown upon the party contending that it is 
 
 (1) Ex parte Barclay, 7 Ves. ley v. Case, 4^. 8cC.5j9. Walter 
 957. V. Haynes, 1 Ryan & M. 149. 
 
 (2) Ex parte Smith, 5 Bro. 1. ilia«?2 v. ilfoo?-.?, Ibid. 249. 
 C. B. L. 171. Ex parte Wilson, (5) Biirridge v. Burgis, 5 Camp. 
 11 Ves. 410. English v. Barley, 262. Crosse v. Smith, 1 M. & S. 
 2 B. & P. 61. Anderson v. George, 545. Goldsmith v. Bland, Bay. on 
 
 1 Burr. 353. Kellock v. Robinson, Bills, 224. 
 
 2 Str. 745. Tindal v. Brown, 1 T. (6) Ex parte Holden, C. B. L. 
 R. 167. 167. Bicker dyke v. Bollman, 1 T. 
 
 (3) Ex parte Gifford, 6 Ves. 805. R. 405. Rogers v. Stevens, 2 T. 
 
 (4) Gnodal v. Dolley, 1 T. R. R. 715. Waltvyn v. St. Quintin, 
 712. Tindal v. Brown, supra. 1 Bos. & P. 652.; and see 13 East, 
 Gee \. Brown, 2 Str. 792. Blis- 214. 4 Camp. 285. 1 Star. 116. 
 sard V, Hurst, 5 Burr. 2670. Hart- (7) Wilks v. Jacks, Peake,202. 
 
 R 2 
 
 dishonor.
 
 24,4! 
 
 OF THE PROOF OF DEBTS. 
 
 [Chap. 9. 
 
 Bills and 
 
 notes. 
 
 Bills pay- 
 able to a 
 fictitious 
 payee. 
 
 so. (1) And if the holder has not given notice himself to 
 the drawer, he cannot avail himself of notice given by any 
 other person. (2) The bankruptcy or insolvency of the 
 acceptor, it has been determined, does not excuse the 
 holder from giving notice to the drawer, or any other 
 party entitled to notice. (3) But it was held by Lord 
 Thurlow, that if the drawer, or indorser, is a bankrupt at 
 the time of the dishonor of the bill, it was unnecessary to 
 give notice, either to him or his assignees. (4) In a I'ecent 
 case, however, before the Court of King's Bench, it was 
 decided, that where the house of the bankrupt drawer is 
 kept open by an agent of his assignees, there notice is 
 essential — and a neglect to give it will bar the holder's 
 right to prove against the drawer's estate. (5) Lord Thur- 
 low's decision was not cited in argument in the last case — 
 but the necessity of notice under these circumstances has 
 been in some measure recognized in a case before Lord 
 Eldon, in which he decided, that notice of a dishonored bill 
 given to a bankrupt, as drawer, before the choice of assignees^ 
 was sufficient notice to entitle the holder to prove. (6) 
 
 If a bill be made payable to a fictitious payee, with the 
 knowledge of the acceptor, it is considered in effect as 
 payable to the bearer: and a bond fide holder of it for a 
 valuable consideration may prove it under a commission 
 against the indorser, or any other party, who knew, at the 
 time he put his name to it, that the payee was a fictitious 
 person. (7) But where the acceptor, at the time of his 
 acceptance, was ignorant that the paj'ee was a fictitious per- 
 son, the bill in such a case has been held to be void. (8) 
 
 (l) Ex parte Heath, 2 Ves. & B 
 240. 
 
 (2) 
 
 (5) 
 117. 
 165. 
 Bayl. 
 
 (4) 
 
 (5) 
 517. 
 
 (6) Ex parte ilfo/iwd?, 19 Ves. 2 16. 
 
 Ex parte Barclay, 7 Ves. 597 
 
 Esdaile v. Soivcrby, 1 1 East, 
 Thachrayy . Blackctt, 3 Camp. 
 
 11 Ves. 412. 2B. &P. 279. 
 115. Chitt. 210. 
 
 Ex parte Smith, 5 Bro. 1. 
 
 Rohde V. Proctor, 4 B. & C. 
 
 (7) Ex parte Clarke, 5 Bro. 238. 
 Ex parte Alle7i, C. B. L. 172.; and 
 see Tatlock v. Harris, 5 T. R. 1 74. 
 Vare v. Lewis, ibid. 182. Minct 
 V. Gibson, ibid. 48 1 . Collis v. Emet, 
 1 H. B. SI". Gibson v. Minct, ibid. 
 569. Gibson v. Hunter, 2 H. B. 
 288. 
 
 (8) Bennet v. Famell, 1 Camp. 
 130. 180. c.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 245: 
 
 The same objections, also, as to the fo)~m of the bill, -^^^* ^"^ 
 
 TlotcS 
 
 which may be urged with effect in an action, apply to the ' 
 
 proof of it under a commission. Thus, a bill or note is Bill or 
 bad, if the sum for which it is given is payable on a con- ^j^jg ^^ ^ 
 tingency — or if, in the case of a note, the promise to pay is contin- 
 2i conditional, and not an absolute, promise. (1) A pro- S^ncy, a . 
 missory note, therefore, given to pay a sum, " when the 
 circumstances of the maker will admit without detriment 
 to himself or family," does not create a debt proveable 
 under a commission. (2) So, a promissory note made 
 payable " in cash, or Bank of England notes," has been 
 for the same reason held bad for uncertainty; and the 
 holder of several notes of this description, who received 
 them from an intermediate person, was not allowed to 
 prove under a commission against the maker, either upon 
 the notes (3), or as for money had and received. (4) 
 
 If the bill or note has not a proper stamp affixed to it, — Want of 
 this, also, is another objection, which is as valid in Bank- st^i^p 
 ruptcy, as at law. (5) But though a bill be void for want 
 of a proper stamp, proof may still be made for the original 
 consideration. (6) 
 
 Where a bill is taken ^without the indorsement of the party Bill not 
 from whom the holder receives it, the bill itself cannot be indorsed 
 proved under a commission against that party ; for no delivering 
 debt is proveable on a bill, but what arises on the face of it» "ot 
 it. (7) And, though there is a private mark on the bill, a^aintt 
 
 him. 
 
 (1) Smith V. Boheme, cit. 2Ld. were declared by the legislature to 
 Rayni. 1362. 1396. Roberts v. be a legal tender, and formed the 
 Peake, Burr. 523., &c. j and see chief circulating medium of the 
 Bay 1.8. country. 
 
 (2) Ex parte Tootell, 4Ves.372. (5) Ex parte Manners, I Rose, 
 
 (3) Exparte/jHesoji, 2Rose,225. 68. 
 
 (4) Ex parte Davison, Buck. 31. (6) Alves v. Hodgson, 7.T.R.241; 
 These two last cases, it must be Ruff v. Webb, lEsp. 129. Brown 
 confessed, carry the doctrine of v. Watts, 1 Taunt. 555. Wilson v. 
 uncertainty, in the construction of Vt/sar, 4 Taunt. 288. 
 
 the promise in a note, to a point (7) Ex parte Roberts, 2 Cox, 
 
 somewhat bordering on the ex- 171.; and see Fenn v. Harrison, 
 
 treme ; — and more especially at a 3 T. R, 759. Ft/ds v. Clarke, 1 Esp. 
 
 time when Bank of England notes 447. 
 
 R S
 
 24-6 
 
 OF THE PROOF OF DEBTS. 
 
 [Chap. 9. 
 
 £ills and 
 notes. 
 
 Contra as 
 to accept- 
 ance of a 
 foreign 
 bill. 
 
 Bill lost. 
 
 When an 
 unindors- 
 
 and the party admit, that upon all bills transferred by him 
 without indorsement, on which he made that mark, he 
 considered himself as much liable as if he had indorsed 
 them (I) — or though the party write over the last indorse- 
 ment, " Pay B. or order," — the rule is the same ; for in 
 neither of these cases does the party contract any legal 
 obligation upon the face of the bill. (2) So, where there 
 was even an engagement in 'writing from the party, to war- 
 rant the payment of the bill in like manner as if he had 
 indorsed it, which engagement came into the hands of the 
 holder for a valuable consideration, — yet this circumstance 
 has been held not to entitle the holder to prove the bill, 
 against the party who had so engaged to pay it. (3) This 
 last point has, however, been ruled differently by Lord 
 Eldon with regard to an acceptance, which, he held, need 
 only be of such a nature, as will render the party liable to 
 an action upon it at law. And, as a letter from a party 
 (on whom bills ai*e drawn) undertaking to accept them, has 
 been held at law to amount to an acceptance of the bills, 
 so, he thought, that they might be equally proved under a 
 commission against such party. (4) But this doctrine of 
 acceptance by letter applies now only to foreign bills of 
 exchange ; for by the 1 & 2 Geo. 4. c. 78. s. 2. all inland 
 bills must be accepted by iioriting u^on the bill. And by 
 the same statute, when a bill is accepted payable at a par- 
 ticular place, this is to be deemed a general acceptance ; 
 and presentment at that place need not be proved, unless it is 
 expressed in the acceptance to be onli/ payable at that place. 
 
 Where a bill has been lost by the holder, he may never- 
 theless be permitted to prove it, upon giving an ample 
 indemnity to the satisfaction of the commissioners. (5) 
 
 "When a bill, which has been taken without the indorse- 
 
 (1) Ex parte Shuttleworth, sVes. 
 368. 
 
 (2) Ex parte Isbester, lRose,20. 
 Vincent v. HurlocJc, 1 Camp. 422. 
 
 (3) Ex parte Harrison, 2 Bro. 
 614. Ex parte Bell, 1 Mont. 192. 
 
 In re Barrington, Sch. &Lef. 112.; 
 and see post. 
 
 (4} Ex parte Dyer, 6 Ves. 9.; 
 and see Clarice v. Cock, 4 East, 57. 
 Wynne v. Bailees, 5 East, 514. 
 
 (5) Ex parte Greenway, 6 Ves. 
 812.
 
 Sect. .15.] OF THE friOOF OF DEBTS. 247 
 
 ment of the bankrupt, is to be considered a purchase, and -S'^^* "■nd 
 when a pledge, will depend on the circumstances of the ' 
 
 case, and the nature of the agreement between the parties, edbillcon- 
 An exchange of paper between two persons, where the bills ^l^^X,. ^ 
 are of the same amount, has been considered to be a pur- and when 
 chase by each party of the bills of the other. As where G. ^ v^^'^Z^- 
 accepted a bill for J. and W., and in exchange they de- pu/chase 
 livered to him at the same time a bill to the same amount IjiH cannot 
 drawn and accepted by other parties, but not indorsed by '^P'^"^^ • 
 J. and W., — Lord Eldon held this to be a purchase on the 
 part of G. of the last mentioned bill — that being the con- 
 sideration for the acceptance given by him to J. and W. ; — 
 and though G. had paid his acceptance, and the bill he 
 received was dishonored, yet he was not permitted to 
 prove the amount of such bill under a commission against 
 J. and W. (1) If the bill is discounted {2) by the taker, it 
 is then also considered as a purchase; and, whenever a bill 
 is taken as a purchase, it liquidates the debt due from the 
 person transferring it to the full amount of the bill (3), 
 and, consequently, the debt cannot be proved under a com- 
 mission against such person. 
 
 Where, however, a bill without indorsement is taken as But in 
 
 /• 
 
 a security for an antecedent debt, and there is no express ^^^^f ° ,, 
 
 . . . . . pledge, the 
 
 agreement that it is taken in p)ayment against all risks (4), original 
 
 it is then considered as a pledge, and does not destroy the . , 
 
 . , . provable, 
 
 debt; therefore, if the bill in this case be bad, though the if bill en- 
 bill itself cannot be proved under a commission against the ^'^'^^^y ^^'^' 
 
 (1) Ex parte Hustler, 1 G. & money secured by the bill (whe- 
 J. 9. ther indorsed or not) minus the 
 
 (2) Mr. Eden in his Ti'catise on interest ; and the person so ad- 
 the Bankrupt Law (page 136. note vancing the money, if he does not 
 (p.)) very justly observes, that there take the indorsement of the partyy 
 is a great inaccuracy in several of is in reality the purchaser of the 
 the books, (1 Rose, 2.3. Buck. 115. bill. 
 
 n.) as to the distinction taken (3) Ex parte Whitter, C. B. L. 
 
 between a transfer with, and with- 124. Ex parte Roberts, ibid. Ex 
 
 out, indorsement, — in denominat- parte Smith, ibid. Bank of Eng' 
 
 ing the one transaction " as a land v, Newman, 1 Ld. Raym. 442. 
 
 sale,^' and the other " as a (lis- 12 Mod. 241. Com. Rep. 57. 
 
 count," — a discount being, in fact, (4) Oivenson v. Morse, 7 T. R. 
 
 nothing more than advancing the 651. 
 
 R 4
 
 248 
 
 OF THE PROCHF OF DEBTS. 
 
 [Chap. 9. 
 
 Sills and 
 notes. 
 
 If of any 
 value, the 
 bill should 
 be sold, 
 and credi- 
 tor prove 
 for the 
 difference. 
 
 Where 
 bankrupt 
 has only 
 
 rORGOT- 
 
 TEN to in- 
 dorse a 
 bill, it may 
 be indors- 
 ed after- 
 wards. 
 
 debtor, yet the original debt, or so much as remains due, 
 may be proved. (1) 
 
 If the bill is taken as a pledge, it should in strictness be 
 sold, and the produce applied in satisfaction or reduction 
 of the creditor's debt ; and if any part remains unsatisfied, 
 he will be then of course entitled to prove for the residue : 
 or the Lord Chancellor will in some cases order, that the 
 creditor shall be at liberty to bring an action on the bill in 
 the name of the assignees, upon his indemnifying them, 
 and undertaking to account for any surplus recovered. 
 And in either case, if the amount of the bill or note exceeds 
 the debt for which it is pledged, the creditor will have to 
 pay the costs of the application, as in the case of an equit- 
 able mortgage upon the deposit of deeds without any writ- 
 ten agreement. (2) 
 
 In some cases, where the bankrupt has merely forgotten 
 to indorse the bill or note, which is transferred by him for 
 a valuable consideration, it has been held, that he may in- 
 dorse it after his bankruptcy (3) ; — for the act of indorse- 
 ment is in such case considered a mere form — the transfer 
 for considex'ation being the substance, which creates an 
 equitable right, entitling the holder to call for the form. (4) 
 So, where the whole beneficial interest is out of the 
 bankrupt, the assignees have been in that case ordered 
 to indorse a bill under the above circumstances — in 
 such a manner, however, as to secure them from per- 
 sonal responsibility. (5) And where the payee of an 
 accommodation bill indorsed it after an act of bank- 
 ruptcy, it was holden, that this did not prevent the in- 
 dorsee, for valuable consideration, from recovering on it 
 against the acceptor. (6) So, where a bankrupt had trans- 
 
 (1) Ex parte BlacJcbyrn, loVes. 
 206. Ex parte Rathbone, Buck. 
 215.; and see Richai-dson v. Kirk- 
 man, C. B. L. 174. 
 
 (2) Ex parte Brown, 1 G. & J. 
 407. 
 
 (3) Smith V. Pickering, Peake, 
 .50. Anon. 1 Camp. 492. n. 
 
 (4) Per Sir T. Plumer, 2 J. & 
 W. 243. 
 
 (5) Ex parte Greening, IsVes. 
 206. Ex parte Mowbray, 1 J. & 
 W. 428.; but see ex parte Hall, 
 1 Rose, 13. Ex parte Stewart, 
 1 G. & J. 544. 
 
 (6) Wallacev.Hardacre, I Camp. 
 45.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 24-9 
 
 ferred, without indorsing, a note for valuable consideration Bills and 
 to B. & C, and afterwards died intestate, and B. took "^^^^__ 
 out letters of administration to him, and then indorsed the 
 note to B. & C, — it was held, that B. & C. might re- 
 cover against the maker of the note(l), though it was 
 given for the accommodation of the bankrupt, and though 
 it was not indorsed until several years after it was due. 
 
 But the mere circumstance of indorsement, in the trans- When the 
 
 fer of a bill or note, does not make a difference in esti- °,"J^<^^ ^^ 
 
 . the trans- 
 
 matmg the rights of the parties, if the real meaning of the fer of a bill 
 
 transaction was only deposit — the distinction dependino; ^? merely 
 
 . r o deposit 
 
 not on the fact of indorsement, but on the intention of the 
 indorser. In this case, however, it must be clearly esta- 
 blished, that notwithstanding indorsement, the object was 
 nothing but deposit. (2) Thus, where several bills were 
 delivered to a mortgagee, some of which were indorsed 
 and others not indorsed — and the question was, whether 
 the bills were intended to be in the nature of a collateral se- 
 curity, or of an absolute transfer — the Court inferred (from 
 their being a mortgage, and from the circumstance of some 
 of the bills not being indoi'sed) that those which were in- 
 dorsed were intended, as well as those unindorsed, to be 
 held as a security only. (3) And if A. give B. a bill to the holder 
 
 the amount of 300/. as a securitij for a debt of 1 50Z. — *=^" °"j[y 
 11 * • 1 • T-> • A 1 prove for 
 
 whether A. indorse it or not — r>., as against A., can only the real 
 
 prove 150/. — and he will be a trustee for A., in respect of ^^^^ '*"^' 
 
 any surplus which he may receive from the other parties 
 
 to the bill. (4) If the holder of bills indorsed by the Holder 
 
 bankrupt, instead of proving; for each bill, proves the whole estopped 
 . . . . . . after hav- 
 
 amount of his debt, for which, he states in his deposition, ing once 
 
 that he has received no security or satisfaction whatsoever treated the 
 
 except the bills he holds, — he will be precluded, after security. 
 
 thus treating the bills as a security in his deposition, from 
 
 saying afterwards they were not to be treated as a security, 
 
 ( 1 ) WatMns v. Maule, 2 J. & W. (5) Ex parte Baldwin, cit. 1 9 Ves. 
 237. 250. 
 
 (2) 1 9 Ves. 232. (4) Per Lord Eldon, ibid.
 
 250 OF THE PROOF OF DEBTS. [Chap. 9- 
 
 Bills and because they were indorsed. (1) Indorsement is, however, 
 
 " "^^^' always considered prima facie evidence of an absolute 
 
 Indorse- transfer, unless the object of mere deposit is clearly shown, 
 
 meat ]\ri' q^. ^^^ j^g plainly inferred from the nature of the trans- 
 mujacie ^ •' 
 
 evidence action between the parties. 
 
 otiibsolute Where A. employs B. to get bills discounted, which A. 
 ^, had not indorsed, and B. indorses them in his own name, 
 
 bills in- the better to effect that purpose, and both A. and B. be- 
 dorsed by ^ome bankrupt, — A.'s estate must relieve B.'s from the 
 liability incurred by the (2) indorsements on these bills ; 
 though the case would be otherwise, if A. had told B. 
 expressly that he would not indorse the bills ; — for then 
 B. would have been an agent with only a limited (3) au- 
 thority. 
 Where If the acceptor of a bill for value become bankrupt, and 
 
 bill paid ([^q indorser is obliged to pay it in consequence of the 
 bv inclorscr o i •/ *■ 
 
 after bank- bankruptcy, he may prove the debt under the commission, 
 ruptcy of although it was not taken up by the indorser till after the 
 tor, may commission issued. (4) It has been held, however, that a 
 be provedj party so claiming to prove a bill taken up by him after 
 but not if ^i^g commission issued, must himself have contracted a 
 party not liability upon it before the issuing of the commission. As 
 liable on where a bill, after the bankruptcy of the acceptor, was 
 taken up by a party, who had previously discounted it 
 without indorsing it, — Lord Eldon refused him permis- 
 sion to prove it under the commission, upon the ground that 
 he had not made himself liable on the bill by indorsement 
 — and added, that all the cases of parties claiming to prove, 
 in respect of the payment of bills after a commission of bank- 
 ruptcy, have been, where the party is himself liable on the 
 
 (1) Ex parte ^wrra, 2 Rose, 58. 570. Ex parte Hale, 3 Ves. 304. 
 
 (2) Ex parte Robinson, Buck. Buckler v. Bidtivant, 3 East, 72. 
 113. Houlev. Baxter, ihiA. 111. Joseph 
 
 (3) Fenn v. Harrison, 3 T. R. v. On?ze, 2 N. P. 80. Contra ^rooto 
 757. V. Rogers, 1 H. B. 640. Howis v. 
 
 (4) Ex parte Brymer, C. B. L. Wiggins, 4 T.R. 714.; but the two 
 1 65. Coivley v. Dunlop, 7 T. R. last cases were cases of sureties. 
 5^5. Ex parte Seddon, cit. ibid.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 251 
 
 bill. (1) But Lord Thurlow upon a former Occasion Bilk and 
 said, that he considered it as a very clear point, that a bill of " " ^^' 
 exchange, though negociated after the bankruptcy of the Bill, how- 
 acceptor, might be proved under his commission ; as the ^^^' ™^^_ 
 debt accrued from the acceptor by his original acceptance ated after 
 
 of the bill. (2) Accordingly it has been holden, that the ^^^"^' 
 
 . . ruptcy. 
 
 indorsee of a bill, though indorsed to him after the bank- 
 ruptcy of the acceptor, can prove it under his commission, 
 but only for such amount, as the indorser himself could 
 have proved at the time of the commission. (3) So that it 
 should seem, if the case of ex parte Isbester could have 
 been considered merely a transfer of the hill for value to a 
 third person, after the commission against the acceptor — 
 and not as a -payment of the bill by a person, who was in fact 
 never a party to the hill, or liable to pay it — the bill might 
 have been proved under the commission. 
 
 Where bankers' notes were bought up after their bank- Where 
 ruptcy, they cannot be proved by the holder, — unless it can banker's 
 be shewn that the pei'sons, from whom they were purchased, bouo^ht 
 
 were individually entitled to a proof in respect of the "P ^^^^"^ 
 
 , , _ / , , ^ . , . , , bank- 
 
 notes. (4) But there have been some special exceptions (5) ruptcy. 
 
 to this rule; and in one case, where one of the partners 
 
 of the bank, after getting his certificate, took up the notes 
 
 of the firm, he was permitted to prove (6), — upon making 
 
 an affidavit, that he would not have paid the notes, unless 
 
 the holders had had a valid claim against the firm. 
 
 And in all these cases, where a bill is neffociated after Difference 
 
 IT IS DUE, whether by indorsement or mere delivery, the ,-ig^y^fJJ. 
 
 party receiving it takes it on the credit of the person trans- ing a bill 
 
 ferring it, and subject to all the equities to which it may ^!^^"^'f"'^ 
 
 be liable ; whereas before a bill is due, the party receives due. 
 
 it on its own intrinsic credit, and is not bound to enquire 
 
 (1) Ex parte Isbester, 1 Rose,20. (-3) Ex parte Deey, 2 Cox, 42,5. 
 
 (2) Ex parte Brymer, ante; and (4) Ex parte Rogers, Buck. 490. 
 see ex parte Thomas, 1 Atk. 73. (5) Portsmouth Bank case, cit. 
 sWils. 155. Bingley \ , Maddison, ibid. 
 
 7 T R. 499. (6) Ex parte Atkins, ibid. 479.
 
 252 
 
 OF THE PROOF OF DEBTS. 
 
 [Chap. 9. 
 
 Bills and 
 notes. 
 
 Where, 
 after the 
 proof of 
 several 
 bills, — any 
 one paid 
 in f idly 
 must be 
 deducted 
 from the 
 proof. 
 
 Where 
 
 bill taken 
 lip for the 
 honor 
 
 into any circumstance existing between the person from 
 whom he takes it, and any of the previous parties to the 
 bill.(l) 
 
 Where the holder of several bills, indorsed to him by a 
 bankrupt for whom he had discounted them, proves the 
 aggregate amount of them under the commission, and any 
 of the bills are afterwards paid in full, the amomit of the 
 bills so paid must be deducted from the proof, and the 
 future dividends be paid only upon the residue of the 
 debt. (2) And the same, where the bills have been in- 
 dorsed by the bankrupt as a security for a general ba- 
 lance — or for a debt, even exceeding their amount, and the 
 creditor proves the whole amount of his debt, excepting 
 the bills as a security. (3) And if the dividends have 
 been paid upon the whole proof without such deduction, 
 the assignees are not thereby concluded — for the Lord 
 Chancellor on petition will order them to be refunded. (4) 
 In this respect, we perceive the rights of the creditor differ 
 from the case, where he proves only a single bill ; for 
 there he is entitled to a dividend on the full amount of 
 his proof, provided he does not receive in the whole more 
 than 205. in the pound. (5) But when several bills are 
 thus proved — as each bill forms a separate and distinct 
 portion of the whole debt — if a creditor was permitted, 
 after one of the bills was paid in full to take a dividend 
 upon the gross sum, without deducting the amount of the 
 bill paid off, — he would then be receiving, as to that portion 
 of the debt which was composed of the paid bill, more 
 than 20s. in the pound. 
 
 Where the acceptor of a bill becomes bankrupt, and 
 another person after the bankruptcy takes up the bill for 
 the honor of the drawer, that person has no right to prove 
 
 (1) Broivn v. Davies, 3 T. R. 80. 
 Boehm v. Stirling, 7 T. R. 427. 
 Broivnv. Turner, ibid. 630. Tinson 
 V. Francis, 1 Camp. 19. Chitt. 126. 
 
 (2) Ex parte Smith, C. B. L. 155. 
 Ex parte Bloxham, ibid. 
 
 (3) Ex parte Wallace, C. B. L. 
 155. Ex parte Ooi-siy, ibid. Ex 
 parte Rufford, 1 G. & J. 41. Ex 
 parte Barratt, ibid. 327. 
 
 (4) Ex parte Burn, 2 Rose, 55. 
 
 (5) Ante, 239.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 253 
 
 against the estate of the acceptor, unless the acceptor had Bills and 
 effects of the drawer's in his hands — for such person can ' 
 
 only stand in the place of the drawer. (1) of the 
 
 With respect to proof of what are termed accommodation ^^^^^' 
 bills — that is, bills to which one of the parties has sub- dalion bills 
 scribed his name without receiving any value — the holder ^^hen 
 of a bill of this description, who has bond Jide given a 
 valuable consideration for it, is not affected by the want of 
 consideration between the other parties. (2) But such bill 
 cannot be proved as between the parties to the accom- 
 modation. And where a debtor to a bankrupt's estate, 
 after notice of the bankrupt's insolvency, acquired a bill 
 with the bankrupt's name upon it, (which he knew then 
 was a mere accommodation bill given by the bankrupt, 
 and formed no demand upon the bankrupt's estate) with a 
 view to set it off against his own debt, — he was held not to 
 be a bond Jide holder of such bill ; — and, having proved for 
 the difference between the amount of the bill and the debt 
 he owed the bankrupt, his proof was ordered to be ex- 
 punged. (3) When two persons, however, agree that the 
 one shall accept and pay all bills, which a third may draw 
 upon him on account of the other — and the drawer has 
 effects in the hands of one of those parties, though not in 
 the hands of the acceptor — the acceptor by such an agree- 
 ment makes himself equally liable with that party, in whose 
 hands the drawer has effects — and the drawer may there- 
 fore prove such bills under a commission against the 
 acceptor. (4) 
 
 When a party lends his name upon a bill, whether as Party 
 
 drawer, acceptor, or indorser, without receiving value for lending his 
 . . , " name, sub- 
 
 such accommodation, he is substantially a surety for the stantiallyj 
 
 other part}^, who has received a consideration for the bill ; ^ si"'ety. 
 
 (1) Ex parte Lambert, 1.5 Ves. (3) Ex parte Stone, 1 G. & J. 
 174. overruling. Ex parte Wack- 191.; and see Fair v. M'lver, 
 erbatli, 5 Tes. 574. 16 East, 130. 
 
 (2) Cull. B. L. 97. Chitt 442. (4) Ex parte Marshall, 1 Atk. 
 
 130.
 
 ^54^ 
 
 OF THE PllOOF OF DEBTS. 
 
 [Chap. 9. 
 
 Accommo- 
 dation bills. 
 
 Surety en- 
 titled to 
 benefit of 
 the hol- 
 der's 
 proof. 
 
 Former 
 disability 
 attached 
 to him. 
 
 May now 
 prove, 
 though he 
 pays the 
 debt after 
 the com- 
 mission. 
 
 and if, through the default of that party, he is obliged to 
 take it up, he is entitled, of course, to be indemnified by 
 the estate of that party. In bills of exchange, Lord Hard" 
 wicke observes, there is a double contract — the first between 
 the principal debtor and creditor — and also an implied con- 
 tract, that the principal debtor will indemnify the surety — 
 so that if the creditor (the indorsee) comes upon the surety 
 (the indorser), the indorser or his assignees may come in 
 against the original or principal debtor; and he added, 
 that this was likewise the case, where no consideration was 
 paid by the original drawer. (1) This principle has been 
 often recognized in Bankruptcy. As where the holder of a 
 bill proved it against the person, who was ultimately bound 
 to pay it, before he called upon the surety, and he after- 
 wards received from the surety either the whole or a part 
 of the debt, — the Court was always accustomed to give the 
 surety the benefit of the holder's proof (2) under the com- 
 mission. But there was a great hardship formerly, where the 
 surety paid off either the whole of the bill subsequent to 
 the act of bankruptcy, or part of it before the creditor had 
 proved ; for, in the one case, the creditor could only prove 
 for the residue of the debt owing at the time of the proof — 
 and, in the other, the surety was held to be barred entirely 
 from proving — as, quoad him, it became a debt subsequent 
 to the bankruptcy. (3) To remedy this grievance to the 
 surety, the 49 G. 3. c. 121. s. 8. first enacted, and the 52d 
 section of the new statute enacts nearly in the same words, 
 that any surety or person liable for any debt of the bankrupt, 
 though he pays the debt, or any part of it, after the com- 
 mission issues, may stand in the place of the creditor, if the 
 creditor has proved — and if not, then that the surety may 
 prove his demand in respect of such payment, not disturb- 
 
 (1) Ex parte Walton, 1 Atk. 125. 
 
 (2) Ex parte Rysivicke, 2 P. 640. 
 r,^^ on gx parte Marshal, 714 
 
 E.\ parte Mathews, 
 
 Wms. 89. 
 1 Atk. 129 
 eVes. 285. 
 
 (3) Brookes v. Rogers, 1 H. B. 
 Howis V. Wiggins, 4 T. R.
 
 Sect. 15.] OP THE PROOF OF DEBTS. 255 
 
 inff former dividends. And this benefit is given to the Accommo- 
 
 • 1 T 1 11 r elation bills. 
 surety, notwithstanding he may have become so even alter 
 
 an act of bankruptcy — provided he had no notice then of 
 
 any act of bankruptcy. The words " person liable" in the 
 
 above enactment, LordEldon has observed (1), were adopted 
 
 for the convenient latitude of comprehending all those, who 
 
 could not strictly be considered as sureties, but who w^ere 
 
 entitled to the same protection. Thus, the acceptor of a Acceptor 
 
 bill of exchano;e is not strictly a surety for the drawer — the "* ^" ^^- 
 
 coniniociti- 
 acceptor being, on the face of the bill, liable in respect of tion bill 
 
 his own engagement merely; — but if die debt, which the ac- treated as 
 
 ceptor adopts, be in reality the debt of the drawer, and the 
 
 contract between the drawer and acceptor be in the nature 
 
 of an accommodation transaction, viz. that the drawer should 
 
 be the person finally responsible, — in this case, though 
 
 the acceptor would not strictly be a surety, yet he is a 
 
 " person liable." 
 
 In conformity, therefore, with the above enactment, — And may 
 
 when the acceptor of a bill for the accommodation of the prove 
 1 -^11 ,11 11-1 • against the 
 
 drawer is, after the drawer s bankruptcy, obliged to pay it — drawer 
 
 though the bill itself is, strictly speaking, gone by the ac- for the 
 
 , . . 1 , r 1 amount, 
 
 ceptance being paid — yet the acceptor may prove lor the ^j^jj jjjg 
 
 amount, as having paid it for the use of the drawer. (2) costs. 
 
 And such proof, as it should seem, may also include the 
 
 costs (if previously ascertained) of an action brought against 
 
 the acceptor by the holder, in consequence of the drawer 
 
 not providing funds to pay the bill when due. (3) If the 
 
 acceptor assigns his debt to a third person, he may be 
 
 called upon by such assignee to prove it, and the assignee 
 
 will be entitled to all the dividends in respect of it. (4) 
 
 (1) 3 V. & B. 40. V. Be Paibe, ibid. 528. Snaith v. 
 
 (2) Ex parte Lloyd, 1 Rose, 4. Gale, 7 T. R. 364. Ex parte Beau- 
 Stedman v. Martinnant, 13 East, foy, C. B. L. 158. Heskingson v. 
 427. Before the 49 G. 3. c. 121. Woodbridge, Doug. 166. 
 
 this could not- be done. See ex (3) Vansandari v. Corsbie, 3 B. & 
 
 parte Walton, 1 Atk. 122. Qnlton A. 13. 8 Taunt. 550. 2 Moore, 
 
 V. Whiffin, 3 Wils. 13. Young v. 602. 
 
 Hockley, ibid. 34G. Vanderheyden (4) Ex parte Lloyd, supra.
 
 256 OF THE PROOF OF DEBTS. [Chap. 9. 
 
 Accommo- This equity (which is now in fact become a legal right) 
 
 If surety who has proved it under a commission, was before the 
 th^^bUl ^^ ^' ^' ^^ ^^^ quahlied, that it was not permitted to operate 
 after the to the prejudice of the holder — if the latter had any other 
 
 holder has ^hstinct demand against the bankrupt's estate ; so that if 
 
 received a ... 
 
 dividend, there would be any diminution of the dividends upon such 
 
 holder distinct debt, occasioned bv the surety's standing in his 
 bound to .... * 1 1 -n 
 
 account to place and receiving dividends upon the amount of the bill, 
 
 surety. such diminution was directed to be made good out of the 
 dividends receivable by the surety. (1) But this point has 
 been differently decided since the 49 G. 3. As where a 
 surety on a note, after the bankruptcy of the debtor, paid 
 it off to the creditor, the latter having previously proved 
 for a greater amount, and received a dividend on the gross 
 amount of his debt, — Lord Eldon ordered, that the surety 
 should receive from the creditor the dividend on the note, 
 which the creditor had already been paid. (2) 
 
 As to the discharge of the surety on a bill or note, by 
 the holder discharging or compounding with the principal, 
 see post, title " Sureties." 
 
 Crossbills, Where, however, a party lending his name on a bill or 
 
 former j^^^^ ^^j. ^^ accommodation of the bankrupt, had taken for 
 
 practice in ^ 
 
 proof of. his own security a counter bill, with the bankrupt's name 
 
 upon it, he was, independently of the 49 G. 3., permitted 
 
 to prove the latter under the commission, though the 
 
 former bill had not become due. For the mere liability 
 
 to pay money was held a good consideration for a bill of 
 
 exchange, and would entitle the party to come in as a 
 
 creditor under the commission, although the payment in 
 
 respect of the liability was infuturo, or depended upon a 
 
 contingency. (3) And this, it was said, did not militate 
 
 against the old rule, that contingent debts were not prove- 
 
 (1) Ex parte Turner, sVes. 243. (3) Toussaint v. Martinant, 2T. 
 Ex parte Ruslnvorth, loVes. 409, R. 100. Hodgson v. Bell, 7 T.R. 
 Paley V. Field, 12 Ves. 435. 97. 
 
 (2) Ex parte Brook, 2 Rose, 534.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 257 
 
 able, because the claim under the commission was upon Accommo- 
 
 an instrument creating an absolute debt at law. (1) But ^ '"" ' ^' 
 
 though the holder of a counter-bill could prove it before 
 
 the other bill became due, yet the practice was to reserve 
 
 the dividends, until it appeared to what extent he had been 
 
 damnified, and whether he had exonerated the bankrupt's 
 
 estate from the bill or acceptance, given by him to the 
 
 bankrupt in exchange for such counter-bill. (2} It was 
 
 afterwards doubted, whether such proof ought to have been 
 
 permitted, before the party applying to prove had taken up 
 
 his own paper, or had paid the original debt. (3) And it Party ap- 
 
 seems now to be a settled rule, that the surety claiming to P'^'^S to 
 
 Jo prove, 
 come. in as a creditor upon an exchange of acceptances must take 
 
 must, before he can be permitted to prove, take up his "P'"sown 
 
 own bills, or exonerate the bankrupt's estate from any 
 
 liability in respect of them, (i) 
 
 Where there has been a mere exchange of acceptances In ex- 
 
 for the same sum. between the creditor and the bankrupt, '^"^"^^ °^ 
 
 ^ ^ accept- 
 the creditor cannot prove against the bankrupt any pay- ances for 
 
 ment made on the creditor's own acceptance ; for in such a *"^ ^''""^ 
 transaction the law considers, that the creditor did not give proof al- 
 his own acceptance in consideration of a promise of in- lowed of 
 demnity from the bankrupt, but in consideration of an ment. 
 actual and executed delivery of the other acceptance. 
 Each party, therefore, under these circumstances, is held 
 to have liquidated his claim on the other, by the accept- 
 ance which he takes in lieu of his own. (5) Whether, in Evidence 
 other exchanges of paper between two parties, one accept- ? •°"^- ' 
 ance is to be considered as given, or one bill transferred in in consi- 
 
 (1) Ex parte iWaj^rfitf//, C.B.L. (2) Ex parte Curtis, C. B. L. 
 
 252. Rolfev. Caslon,2Y{,B.510. 162. Ex parte i/ee, ibid. Ex parte 
 
 Ex parte Beaufoy, C. B. L. 158. Broivne, ibid. 
 
 Ex parte Clanricarde, ibid. 160. (.3) In re ^o;-on£>s^, C. B. L. 161. 
 
 To such miserable devices, says (4) C. B. L, 162. Ex parte 
 
 Mr. Eden, were the courts com- Bloxhain,sNes.5o\. 
 
 pel led to have recourse, in order (5) Cowley v. Dunlop, 7 T. R. 
 
 to effect substantial justice, and to 565. Butler v. Buttivant, 3 T. R. 
 
 elude the operation of a harsh and 72. 
 inequitable rule oiflaw. Eden, B. 
 L. 141.
 
 256 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 but one 
 party pay- 
 ing his 
 own ac- 
 ceptance, 
 may prove 
 the coun- 
 ter one. 
 When 
 both par- 
 ties bank- 
 
 Accommo- consideration of the other, must be determined by the par- 
 d ahon bill s, ^-^^.^ir^^ circumstances of each case. (1) Any variation in the 
 deration of time of payment, or of the amount, of the respective bills, 
 the other; — -^ evidence whether the parties did, or did not, transfer 
 the bills in consideration of each other — though not con- 
 clusive evidence. But an agreement by each party to pay 
 his oven acceptances is conclusive evidence, that the bills 
 were given in consideration of each other. (2) Where, in 
 an exchange of acceptances, one party takes up and pays 
 his own acceptance after the bankruptcy of the other, and 
 the bankrupt's acceptance has not been proved by any 
 other holder, the drawer may, of course, prove it under 
 the commission. But if both parties become bankrupt, 
 and the acceptance of one party has been proved by the 
 holder of it against the estate of the drawer, as well as 
 rupt, divi- against that of the acceptor, and the holder receives dividends 
 by one under each commission — the amount of the dividends paid 
 
 estate not ^^y ^^ assignees of the drawer cannot be proved under the 
 
 ■nroveanle , . 
 
 against the commission against the acceptor ; for that would be charging 
 
 other. the estate of the acceptor twice for the same debt. (3) 
 
 In transactions of this nature, where both parties be- 
 come bankrupt, and there has been a considerable exchange 
 of paper between them, questions of great difficulty fre- 
 quently occur in determining the amount of proof to be 
 made by the assignees of that party, who has accepted to a 
 greater amount than the other — more especially, if there 
 happen to be outstanding acceptances of each party 
 proof to be capable of proof by the respective holders, or bills which 
 th^ ^redi- ^^^^^ been already proved under each commission. In one 
 tor estate case of this kind, where the assignees of one firm claimed 
 
 ?y!/ to prove against the estate of the other outstandintj bills, 
 
 bills, or t^ o o ' 
 
 the cash that might be proved by the holders against both estates, — 
 
 balance. Lord Loughborough held that, as between the two estates, 
 
 no proof could be made of the unsatisfied bills of either 
 
 party ; and he directed an account of the dealings between 
 
 Where 
 both par- 
 ties in 
 cross-bill 
 transac- 
 tions be- 
 come 
 bank- 
 rupt, — 
 whether 
 
 (1) Per Lord Eilenborough, 
 3 East, 76. 
 
 (2) Ibid. 7 T.R. 565. Chitt. 443. 
 (5) Couiley v. Dunhp, supra.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 259' 
 
 the parties to be taken, excluding those bills, and the Accommo' . 
 balance to be ascertained upon the general dealings be- ^ '"" ^" 
 tween them, considering bills duly honored as so much 
 cash — for which balance only the proof was ordered to 
 stand. (1) In a subsequent case, under the same bank- Where 
 ruptcy, where the assignees of one house petitioned to ^ j 
 prove against the estate of the other, not only for the cash proveable. 
 balance between the two estates, but also in respect of the 
 dishonored bills, part of which having been negotiated, were 
 proved by the respective holders against both estates, — 
 Lord Loughborough said, that upon consideration of the 
 case of Ex parte Walker it struck him, that there were but 
 two ways of taking the account between the two estates — 
 either to consider all the bills to be struck out of the case 
 entirely, as if issued for a bad purpose — like gambling 
 transactions, &c., upon which there could be no pi'oof — or 
 to consider them all as good bills, — and that he did not see 
 a middle course ; and he permitted the cash balance in 
 this case only to be proved. (2) 
 
 This principle adopted by Lord Loughborough was 
 afterwards recognized by Lord El don in the following 
 case, where there were mutual advances of cash between 
 the parties, but paper upon one side only. A. and B. had 
 dealings together, in the course of which it appeared that 
 B. had received fron A., in cash and bills, 6421/. 9s. Sd., 
 and A. had received from B., in cash alone, 5284/. 19s. Id., 
 making a balance of 599/. 95. Sd. upon the whole account 
 in favour of A. Both became bankrupt, and several of 
 the bills delivered by A. to B. {amounting to 1098/.) were 
 dishonored, and proved against both estates, and divi- 
 
 (1) Ex parte Walker, 4 Ves. 373. all cross paper should be proved, — 
 
 (2) Ex parte Earle, 5 Ves. 835. but no cash balance, if the party 
 Mr. Christian, in his observations to whom the balance was due has 
 on these cases, (Vol. II. 390.) pro- drawn bills, which have been al- 
 poses a different arrangement from ready proved to the amount of the 
 either of the plans suggested by balance. 
 
 Lord Loughborough, namely, that 
 
 S 2
 
 260 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Accommo- 
 dation bills. 
 
 Where 
 cash ba- 
 lance not 
 proveable. 
 
 dends paid upon them. B.'s assignees applied to prove 
 498/. 105. 4fd. under A.'s commission, insisting that the 
 1098/. should be deducted from the 64.24Z, 95. 3d., and there 
 would then be that balance due to B.'s estate. Lord Eldon 
 admitted the proof, but held that the assignees of A. were 
 entitled to retain and apply the dividends payable in re- 
 spect of such proof, for the exoneration of the estate of A. 
 from all the dividends, which it should be obliged to pay in 
 respect of the proof of those (1) dishonored bills so proved 
 against both estates. 
 
 But where bankers accepted bills for the accommodation 
 of the bankrupt, (who had kept cash with them, and was 
 in the habit of remitting bills to them from time to time to 
 cover the acceptances when they became due) and at the 
 date of the commission the bankers were under acceptances 
 for the bankrupt, and also held bills drawn by the bank- 
 rupt, none of which acceptances or bills were due at the 
 time of the bankruptcy, — Lord Eldon held that upon this 
 sort of transaction, the bankers, taking up their own ac- 
 ceptances, were entitled to prove upon the securities they 
 held, but not for the cash balance. (2) And since the 
 operation of the recent provision for the protection of 
 sureties, a new principle has been introduced in the 
 decision of this class of cases relating to cross-paper 
 transactions. So that if A. has accepted bills for the ac- 
 commodation of B. the bankrupt, and does not pay them 
 when due — or if B. has given A. bills or notes to secure any 
 debt or balance due to him — and any of such acceptances, 
 bills, or notes are afterwards negotiated and proved by the 
 respective holders against B.'s estate, to a larger amount 
 than any cash balance due from B. to A., — such cash ba- 
 lance will not be permitted to be proved under B.'s commis- 
 sion. And notwithstanding A= actually pays any of the bills 
 which have been proved under the commission — all that he 
 
 (1) Ex parte Metcalf, 11 Ves. 
 404. 
 
 (2; Ex parte Bloxham, 8 Ves. 
 531.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 261 
 
 can claim is, to have the benefit of the proof in respect of Accommo- 
 
 the particular bills ( 1 ) which he is obliged to pay. d ationbU ls. 
 
 If, by giving an acceptance, a debt be constituted, which An accept- 
 
 mav be proved under a commission against the acceptor, ^^^\ 
 •^ , ^ . . . . ' which may 
 
 that is as much a consideration for a bill, as if the value of be proved 
 the bill had actually been paid in money. Thus, where "8^'"*^ *"^ 
 G. and Co., being largely indebted in a drawing account to good con- 
 
 F. and Co., paid to them a bill, which the latter indorsed to !,''^^'"^^!^" 
 D. and Co.; and then G. and Co., F. and Co., and two other given in ' 
 parties to the bill having become bankrupt and insolvent, exchange. 
 D. and Co. by proving it under each commission, and receiv- 
 ing a composition from the estate of the insolvent, obtained 
 altogether 20^. in the pound; — it was held, that although 
 
 G. and Co. were only indebted to F. and Co. in respect of 
 F. and Co.'s acceptances, which were in fact not paid when 
 F. and Co. became bankrupt, yet that the assignees of F. and 
 Co. were entitled to stand in the place of D. and Co., in 
 respect of the proof made by the latter under the commis- 
 sion against one of the other parties to the bill, to the 
 extent of the dividends which had been paid to D. and Co., 
 under F. and Co.'s commission. (2) 
 
 Where, by agreement between plaintiffs (bankers at Proof on 
 Carlisle) and defendants (bankers at Newcastle), plaintiffs special 
 were weekly to send defendants all the notes issued by the between 
 defendants, as well as the notes of certain other banking two bank- 
 houses, which might come to the plaintifTs hands — and the ^°^^q g^- ' 
 defendants were in exchange to return to the plaintiffs all change of 
 their own notes, and the notes of certain other bankers snecUve" 
 which might come to the defendant's hands, and the defi- notes, 
 ciency was to be made up by a bill drawn by defendants 
 in favor of plaintiffs at a certain date, — it was held, that the 
 notes so sent by the plaintiffs constituted a debt against 
 defendants, which the latter might pay by a return of notes 
 according to the agreement — but that if they made no such 
 return, or a short return, and gave no bill for the balance, 
 
 (1) Ex parte Read, 1 G. & J. (2) Ex parte Greenwood, Buck. 
 224. 237. 
 
 s S
 
 262 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Bills and 
 
 notes. 
 
 Bill dis- 
 counted 
 may be 
 proved in 
 full; 
 
 so banker's 
 notes 
 bought in 
 for less 
 than their 
 amount. 
 
 Charges of 
 protest 
 proveable ; 
 
 such balance remained as a debt against them, which was 
 proveable by the plaintiffs under a commission issued 
 against the defendants, on an act of bankruptcy committed 
 after the time, when the bill for the balance (if drawn) would 
 have been due and payable. (1) 
 
 The holder of a bill or note, who has discounted it for 
 the previous holder, may prove against any of the parties 
 to the bill for \\\q full amount. (^) And, as an assignee or 
 indorsee of a bankrupt's notes, who has bought them in at 
 10s. in the pound, may take out a commission on such 
 notes (3), — it should seem, that he might equally prove 
 the full amount of them as a general creditor, and receive 
 dividends upon that amount under the commission. 
 
 The costs and charges of jprote&ting bills might formerly 
 be proved under the commission, if they were incurred 
 befoi'e the act of bankruptcy ; but those incurred afterwards 
 could not be proved. But now, it is apprehended, under 
 the ^"itli section of the new statute, all such costs are 
 proveable, if they were incurred before the issuing of the 
 commission, and before notice of the bankrupt's insolvency, 
 and conse- And such costs and charges may include the consequential 
 dani^ages damages which, by the law of a foreign state, the drawer 
 occasioned or indorser of a returned bill is obliged to pay beyond the 
 ofa^fbr i^^ amount of the bill. As, where bills drawn by a trader in 
 state. Pennsylvania upon the bankrupt in England were protested 
 
 and returned to the drawer, some for non-acceptance, and 
 others for non-payment — and by a law of that state the 
 drawer or indorser of a bill so returned must pay it with 
 20 per cent, advance for damages, which the drawer in 
 this case accordingly paid — Lord Camden admitted the 
 drawer to prove the 20 per cent, under the commission, say- 
 ing, that that per centage was part of the original contract ; 
 for the nature of the engagement was to pay the bills when 
 due, or the 20 per cent, in addition (according to the law of 
 
 (1) Forster v. Surtecs, 12 East, (s) Ex parte Lee, 1 P. Wmo. 
 605. 782. 
 
 (2) Ex parte Marlar, 1 Atk. 150.
 
 Sect. 15.] OF THE PROOF OF DEBTS. 263 
 
 Pennsylvania) the same as if it had been by express stipu- Bills and 
 lation.(l) "!!!!_ 
 
 Re-exchange, when it is only the value in sterling Re-ex- 
 money of the bill payable abroad in foreign money, has ^yh"^^' 
 been held proveable, notwithstanding the value of the proveable. 
 foreign money was greater at the time of re-drawing, than 
 at the time of negotiating the bill. (2) But the re-ex- 
 change must not include damages and costs, arising upon 
 protest of bills after the issuing of the commission. 
 
 With respect to interest on bills and notes — the practice Intereston 
 was formerly not to allow it to be pi'oved, unless it was LveabL 
 expressed in the body of them (3) ; or unless there was a 
 special agreement or custom of the trade to that effect (4) ; — 
 the rule in Bankruptcy differing from the rule in Equity in 
 this respect, which allows interest on bills and notes (pay- 
 able on demand, or on a day certain) to be calculated from 
 the demand, or the day. (5) But now, by the BltJi section 
 of the new statute, the holder of any bill or note, which 
 is overdue at the issuing of the commission — though interest 
 is not reserved by it — may, nevertheless, prove for interest 
 upon it up to the date of the commission, at such rate as 
 is allowed by the Court of King's Bench in actions upon 
 bills or notes. And where a creditor, with whom a bill 
 of exchange had been deposited as a security, first proved 
 his debt against the estate of the drawer (his principal 
 debtor) and thereby, and by other means, reduced his debt 
 to 14/., — he was held entitled to prove under a commission 
 against the acceptor, not only the 14/. but also all the 
 interest due upon his whole debt up to the time of making 
 that proof, for the perfect liquidation of the account, in 
 respect of which he held the bill as a security. (6) Where 
 
 (1) Francis v. Riicker, Arab. (4) Ex parte J^mm^i??/, 3Bro.504. 
 672. Ex parte Mills, 2 Ves. 295. Ex 
 
 (2) Ex parte Hoffman, C. B. L. parte Williams, 1 Rose, 399. 
 
 175, (5) Loivndes v. Collins, 17 V"es. 
 
 (3) Ex parte Marler, 1 Atk. 151. 27. Ex parte Kock, 1 V. & B.342. 
 Ex parte Coc^'s, l Rose, 317. Ex Ex parte Coc/w, 1 Rose, 317. 
 parte Champion, 5 Bro. 436. (6) Ex parte Martin, 1 Rose,87. 
 
 S 4
 
 264- 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Bills and 
 notes. 
 
 a bill is drawn payable at a given time after date for a 
 specified sum, " with lawful interest for the same," interest 
 is to be computed from the date of the bill. (1) 
 
 Insured 
 may prove, 
 though 
 loss hap- 
 pens after 
 the com- 
 mission. 
 
 Agent may 
 prove, 
 where in- 
 sured 
 abroad. 
 
 Life insur- 
 ances. 
 
 Insurance 
 on foreign 
 property 
 not prove- 
 
 Section XVI. 
 Policies of Insurance. 
 
 Formerly all debts which might become due and pay- 
 able on policies of insurance, or bottomry and respondentia 
 bonds, being (as such debts are) contingent in their nature, 
 were not proveable under a commission of bankrupt, unless 
 the contingency had happened before the act of bank- 
 ruptcy. Relief was first afforded to creditors holding 
 these securities by the 19 Geo. 2. c. 32. s. 2. which enabled 
 them first to make a claim, and afterwards prove when the 
 contingency took effect. The 5Sd section of the new 
 statute adopts that provision, declaring that the obligee in 
 any bottomry or respondentia bond, and the assured in 
 any policy of insurance, made upon good and valuable 
 consideration, shall be so admitted to claim, and after the 
 loss to prove his debt or demand, and receive dividends, as 
 if the loss or contingency had happened before the issuing 
 of the commission against the obligor or insurer. And 
 the person, also, who effects the policy, may prove for 
 any loss, though not beneficially interested in the ship or 
 goods, in case the person really interested is out of the 
 realm. (2) 
 
 Insurances upon lives are within this enactment ; for, 
 though they are not expressly mentioned, the enacting 
 words are sufficient to comprehend them. (3) 
 
 A debt upon a policy of insurance on foreign property, 
 though the policy is effected during peace, yet where the 
 loss happens by capture by any British or co-belligerent 
 
 yl) Doman v. Dibden, 1 Ry. & 
 M. 381. 
 
 (2) This last provision is taken 
 from the 49 G. 3. c. 121. s. 16. 
 (5) Cox\, Liotard,Doixg. 166.
 
 Sect. 17.] OF THE PROOF OF DEBTS. 265 
 
 vessel, after the commencement of hostilities, is not prove- Policies of 
 able — not even after the return of peace (1); for every in- " ^"^""^^ ' 
 surance on alie7i property by a British subject must be able, if loss 
 understood, with this implied exception, that it shall not ^y British 
 extend to cover a7ii/ loss during the existence of hostilities 
 between the respective countries of the assured and 
 assurers. 
 
 Section XVII. 
 
 Rent. 
 
 A landlord having a general right to distrain goods for 
 rent, as long as they remain on the premises for which the 
 rent is due — neither the issuing a commission of bankrupt 
 against the tenant, nor the messenger's possession of his 
 goods, will prevent him from exercising that right. But Landlord 
 by section 74. of the new statute, the landlord cannot now, ^?" ^P'y 
 after the act of bankruptcy, distrain for more than one for one 
 year's rent, — and that must have become due before the date year's rent, 
 of the commission. If more than a year's rent, therefore, of bank- 
 is due to him, he can only prove for the residue ; the law, ruptcy. 
 in this respect, putting him now upon the same footing, in 
 Bankruptcy, as when his tenant's goods are seized by the 
 sheriff under an execution, in which case he is only en- 
 titled to a year's rent out of the goods so seized. (2) As 
 long, however, as the goods continue on the premises, 
 whether before or after assignment to the assignees, or 
 even after the assignees have sold them, the landlord will 
 be entitled to distrain for the whole year's rent. (3) 
 
 But in a Case, where the landlord proved the amount of Afterprov- 
 the rent due to him under the commission, and permitted rent°and^ 
 the assignees to sell the goods to a third person, who lying by 
 
 (1) Ex parte Iree, 4 Mont, B. L. (3) Ex parte Plummer, 1 Atk. 
 App. 13. 13 Yes. 64. Brandon V. 103. Ex parte Jacques, 1 Atk. 
 Curling, 4 East, 410. 104. Ex parte Dillo7i, ibid. 
 
 (2) 8 Ann. c. 14.
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Bent. 
 
 for three 
 years, can- 
 not after- 
 wards 
 distrain. 
 
 When 
 goods 
 taken off' 
 the pre- 
 mises, 
 landlord 
 cannot 
 distrain, 
 
 thereupon took possession of them, and resided on the 
 premises — and the landlord, three years after proving his 
 debt, distrained upon the goods as being still upon the 
 premises, — Lord Hardwicke, after great consideration, 
 determined, that the vendee of the goods was entitled to 
 retain them ; and confined the landlord to his remedy 
 under the commission. (1) And indeed it should seem 
 now, under the equitable construction of the 59th section 
 of the new statute, (which declares that the proving or 
 claiming a debt by a creditor shall be an election to take 
 the benefit of the commission, with respect to the debt so 
 proved) that whenever the landlord had once proved or 
 claimed the amount of his rent under the commission, his 
 doing so would be deemed equally an election, and would 
 amount to a waiver of his remedy by distress. 
 
 Whenever the goods are taken qjf the premises, after 
 being sold by the assignees, the landlord then loses his 
 remedy altogether by distress, and can only come in under 
 the commission j)i'o rata with the rest of the creditors. (2) 
 And in one case, though he had in fact distrained before 
 the bankruptcy, but the tenant had replevied the goods, 
 and the replevin cause was pending at the time of the 
 bankruptcy, the landlord was held to have lost his lien. (3) 
 Nor, when the goods are once actually removed, is the 
 landlord entitled to a lien for a year's rent under any 
 equity of the statute, which gives the landlord a year's 
 rent in the case of an execution (4) ; for a commission of 
 bankrupt is not an execution within the meaning of that 
 statute. (5) Therefore, where a sheriff seized and sold 
 goods under an execution after an act of bankruptcy, it 
 was held, that he was not entitled, out of the produce of 
 the sale, to retain for a year's rent which he had paid to 
 the landlord, unless he could show that such payment was 
 
 (1) Ex parte Grove, 1 Atk. 103. 
 
 (2) Ex parte Descharmcs, 1 Atk. 
 103. Ex parte Grove, ibid. 
 
 (3) Bradyll v. Ball, 1 Bro. 427. 
 
 (4) Ex parte Devine, C. B. L. 
 177.; but see 2 Bl. Com. 487. 
 contra. 
 
 (5) Lee V. Lopes, 1 5 East, 250.
 
 Sect. 17.] OF THE PROOF OF DEBTS. 267 
 
 made without notice of the commission. (1) But in an Rent. 
 action by the landlord against the sheriff' for not paying a 
 year's rent, it was held by the Court of Exchequer to be no 
 answer, that the tenant was bankrupt when the execution 
 was executed, and that the goods were therefore no longer 
 his property, but that of the assignees, — and that the sheriff 
 ought not to be liable both to the assignees and the land- 
 lord. (2) If the goods however are fraudulently or clandes- except 
 tinely removed by the assignees to avoid a distress for rent, j i ".i'^'^"' 
 then the landlord has a right, under the 11 Geo. 2. c. 19. removed, 
 s. 1., to follow the goods, and distrain them wherever he 
 may find them, within thirty days after their removal. 
 
 But, unless a landlord actuality distrain the goods of his But land- 
 tenant, he can have no lien on them whatever for his rent, ^"^'l.has 
 111 11- no lien, 
 
 though as long as they do contmue on the premises, he unless he 
 
 has still the right to distrain. "When it is said, therefore, «^^"«% 
 that a mortgagee of a bankrupt's leasehold estate, who pays 
 the arrears of rent due to the bankrupt's landlord, may 
 apply to the Court for an order, that he may stand in the 
 place of the landlord with respect to his right to dis- 
 train (3), — that can only have reference to a case, where 
 the arrears have been paid upon a distress already made by 
 the landlord, — or at least, where there are goods still re- 
 maining on the premises for the landlord to distrain. 
 
 Though a landlord cannot in general distrain until the Landlord 
 rent becomes due, yet, if the agreement be otherwise, or "'''^y.Y 
 there is a custom of the country to the contrary, there is a"ieement 
 no objection to it in point of law. Therefore where a °'' '''^ ^^^' 
 bankrupt (who had previously committed an act of bank- countrv 
 ruptcy) took a shop, and agreed to pay half a year's rent distrain 
 in advance, and by the custom of the country also that advance. 
 proportion of rent was payable on the day on which the 
 tenant entered, — the landlord was held entitled, before the 
 first half year expired, to distrain the goods on the premises 
 for half a year's rent; and the landlord having in fact 
 
 (1) Ibid. (5) 1 Atk. 103. 
 
 (2) Duck V. Braddyl, 1 5 Pri. 455.
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Rent. 
 
 Where 
 bailiff dis- 
 training 
 embezzles 
 the sur- 
 plus, and 
 becomes 
 bankrupt, 
 tenant can 
 only prove 
 for the 
 amount. 
 
 Assignees 
 of a bank- 
 rupt lessee 
 must elect 
 whether 
 they will 
 take the 
 lease« 
 
 bought the bankrupt's goods at the sale under the commis- 
 sion, it was also held, that he had a right to retain the amount 
 of the rent out of the purchase money (1) due to the as- 
 signees. In this case, though there was no actual distress, — 
 yet, the landlord being in possession of the goods as a 
 purchaser, it was considered that he had the remedy of 
 distress in his own hands, by preventing the goods (as 
 purchaser) from being removed off the premises, until he 
 chose to exercise his rights as landlord. (2) 
 
 On a distress for rent, goods were sold producing a sur- 
 plus after satisfaction of the rent, which surplus remained 
 in the hands of the bailiff, who afterwards became bank- 
 rupt. The tenant died, and his executor claimed this 
 money of the assignees, in preference to the other creditors 
 of the bankrupt. But it was held that, as the bailiif had 
 embezzled the money, the executor must come in with the 
 rest of the creditors (3), though, if any thing had remained 
 in specie^ the case might have been different. 
 
 In order to protect landlords from any loss of future 
 rent accruing after the bankruptcy of their tenants, it is 
 enacted by the 15th section of the new statute, that if the 
 assignees of a bankrupt, who is possessed of leasehold 
 premises, shall not, upon being required by the landlord, 
 elect whether they will accept or decline the lease, the 
 landlord may apply, by petition to the Lord Chancellor, for 
 an order that they shall so elect — and in case they shall 
 decline the lease, then that the lease and the possession of 
 the premises may be delivered up to the landlord. 
 
 For further information on this head,, the reader is re- 
 ferred to that part of the following chapter (4-) which treats 
 of the duty of the assignees in collecting the bankrupt's 
 property. 
 
 (1) BucMey V. Taylor, 2T. R. 
 600. 
 
 (2) It might, however, (as Mr. 
 Christian suggests, Vol. II. 510.) 
 have been contended in this case 
 with some reason, that the fact of 
 the landlord purchaning the goods 
 
 under the commission, was rather 
 an abandonment of his right to 
 distrain, than an assertion of it. 
 
 (3) Ex parte Dobson, 7 Vin. Ab. 
 
 74. 
 
 (4) Post, Ch. X.
 
 Sect. 18.] OF THE PROOF OF DEBTS. 269 
 
 Section XVIII. 
 Interest. 
 
 The rule in Bankruptcy as to the proof of interest is, Interest 
 
 that none is proveable but what arises by contract; for if °"'^ , , 
 
 . . , p , proveable 
 
 there be no contract, interest is then only matter of da- when aris- 
 
 mases, and is given as such merely in an action at law. ^"S "y 
 
 o ' o •' • . 1 contract. 
 
 When, indeed, interest is part of the contract, it is then as 
 
 much a debt as the principal ; but where it is matter of 
 
 damages, — as damages not liquidated cannot be proved 
 
 under the commission, so neither can interest in the shape 
 
 of damages. (1) And this principle has been recognized, as 
 
 well in the event of a surplus (2), as in the case of proof. 
 
 But, whether the contract to pay interest is express^ or How con- 
 implied, the creditor is in either case entitled to interest at j^. gy-_ 
 law upon his debt, — and the contract may be collected denced. 
 either from the agreement between the parties, from the 
 nature of their dealings with each other, or from the usage 
 and custom of trade, as applicable to the particular trans- 
 actions that have passed between them. (3) 
 
 Interest on hills of exchange and promissory notes was Interest 
 (as we have already seen) (4) before the present statute not an^inoteg 
 proveable, unless the bill or note bore interest on the face 
 of it ; but it is now proveable down to the date of the 
 commission. 
 
 A specialty creditor cannot have interest calculated, so not al- 
 as to exceed with the principal the amount of the penalty (5) beyond 
 contained in his security. penalty. 
 
 (1) Ex parte Furneaux, 2 Cox, (4) Ante, 265. 
 
 219.; and see post. " Damages." (5) Bromley v. Goodere, 1 Atk. 
 
 (2) Ex parte Champion, 3 Bro. 80. Ex parte Mills, sVes.SCl. 
 436. Ex parte Hankeij, ibid. 504. Tew v. Earl of Winterton, 3 Bro. 
 Ex parte Mills, 2 Ves. 295. 489. Knight v. Maclean, ibid. 495. 
 
 (.3) Ibid. Ex parte Boyd, 1 G. 
 &J.285.
 
 270 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Interest. 
 
 Depositary 
 not charge- 
 able. 
 Com- 
 pound in- 
 terest not 
 allowed, 
 
 except on 
 a contract 
 to pay it. 
 
 Interest 
 only 
 
 proveable 
 up to date 
 of com- 
 
 A mere depositary is not in general chargeable with in- 
 terest, unless he has himself made interest of the property 
 deposited. (1) 
 
 Interest upon interest, that is, com'pound interest^ is not 
 commonly allowed (2) ; though it is said, that in the deal- 
 ings of merchants, where there are regular accounts settled 
 from time to time, and a sum for interest debited and al- 
 lowed by either party, interest upon interest is then 
 admitted to be proved, on the ground of an original con- 
 tract to pay it ; and that the settling accounts in that way 
 is evidence of an original contract. And in a case where 
 an executor became bankrupt, and the testator had directed 
 the property to accumulate^ Lord Eldon charged the 
 estate with interest at 5 per cent, with rests, on the princi- 
 ple of an implied contract to pay such interest, in respect of 
 the trust imposed upon him. (3) 
 
 But no creditor is allowed to prove for interest, calcu- 
 lated to a period lower than the date of the commission (4) ; 
 though in one case (which was, however, under a special act 
 of parliament (5) ) proof of interest subsequent to the com- 
 mission was allowed, on a claim by certain commissioners 
 appointed under that act; and as proof for interest after the 
 commission cannot be made directly, so neither can it be 
 indirectly thrown upon the estate, except, indeed, in the 
 event of a surplus. (6) Thus, if a mortgagee, after sale of 
 the mortgaged premises, applies to prove the residue of his 
 debt, he is only entitled to prove for interest up to the date 
 of the commission (7) : though if the estate mortgaged is 
 sufficient to answer the principal and interest, the assignees 
 cannot in that case redeem without paying interest to the 
 
 (1) Bromley \. Child, 1 Atk. 259. 
 
 (,2) Ex parte Morris, 1 Ves. 132. 
 Bromlei/ v. Goodere, supra. Wer- 
 ing V. Cimliffe, 1 Ves. 99. 
 
 (3) Dornford v. Dornford, 1 2 Ves. 
 127. 
 
 (4) Bromley v. Goodere, supra. 
 
 Ex parte Bennet, 2 Atk. 527. 
 14 Ves. 573. 
 
 (5) 51 G. 3. c. 15. 
 
 (6) Ex parte Baton, 1 G. & J. 
 332. Ex parte Gass, ibid. 338. n. 
 
 (7) Ex parte Wardell, C. B. L. 
 181. Ex parte Hcrcy, ibid. Ex 
 parte Badger, 4 Ves. 165.
 
 Sect. 18.] OF THE PROOF OF DEBTS. 271 
 
 time of redemption. (1) But, where there was an order for Interest. 
 superseding a commission, upon payment by the bankrupt 
 of what should be settled by the Master to be due to the 
 creditors under the commission. Lord Hardvvicke held, 
 that the creditoi's were entitled to interest fi'om the date of 
 the Master's report to the day of payment, — as in the com- 
 mon case of a reference to the Master in a cause to state 
 what is due for principal and interest. (2) Where there is 
 a mutual credit between the bankrupt and the creditor, the 
 computation of interest should be stopped at the same time 
 on both sides of the account. 
 
 In a case where the creditor had sold goods to the bank- Where 
 rupt, and agreed, if prompt payment were made, to deduct ^„Yee=. to 
 33 per cent, from the price — but no payment being made allow dis- 
 
 at the stated times, the creditor applied to prove the whole '^°""'' °" 
 ' . prompt 
 
 charge for the goods, without deducting the 33 per cent., payment. 
 
 contending, that this was a contract to accelerate payment, 
 
 rather than to give day of payment, — the Lord Chancellor 
 
 said, they could not make the debt more than the real price 
 
 of the goods, and dismissed the petition. (3) 
 
 If a surety of the bankrupt pays the debt, and the Surety 
 
 interest accmed subsequent to the bankruptcy, it has been ^^owe for 
 
 decided, that he cannot prove such subsequent interest subse- 
 
 under the commission, but only in the same way iis the ^"^"'^ 
 
 , •' ^ interest. 
 
 original (4) creditor. 
 
 But in case the estate of the bankrupt produces a sur- But ifa sur- 
 plus, after paying 205. in the pound, then by section J 32. Pj^'^^^'. ^^f^ 
 of the new statute, the creditors, whose debts are by law allowed to 
 
 entitled to carry interest in the event of a surplus, are first credi- 
 •^ . * ' tors, sub- 
 
 to receive interest on their debts at the rate reserved, or by jecttocer- 
 
 law payable thereon, to be calculated from the date of the tani pn- 
 
 onties. 
 commission. And after such interest shall have been paid, 
 
 then all other creditors who have proved may receive in- 
 
 (1) 7Vin. Ab. 110. 191. 4Ves.678. S. P. Ex parte 
 
 (2) Ex parte Rooke, 1 Atk. 244. Pigoti, 5 Maud. 136. 
 
 (5) Ex parte Ainsworth, C. B.^L. (4) Ex parte WUson, 1 Rose, 
 
 137.
 
 272 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Interest. 
 
 As to the 
 rights of 
 the two 
 classes of 
 creditors. 
 
 Additional 
 
 iterest 
 iiot to di- 
 minish 
 bankrupt's 
 allowance. 
 
 Separate 
 creditors 
 not en- 
 titled to it, 
 till joint 
 creditors 
 paid 20*. 
 in the 
 pound. 
 
 terest on their debts from the date of the commission at 
 the rate of 4 per cent. (1) 
 
 The former rules will of course be applicable, as to the 
 rifrht of interest between these two classes of creditors. 
 Thus the holders of bills of exchange — if no interest is re- 
 served upon the face of them, or by express or implied 
 agreement — will be included only in the latter class of 
 creditors, and be postponed until the payment of all interest 
 that may be due to the first class. For the 51th section of 
 the statute, which (as we have seen) (2) allows holders of bills 
 to prove for interest, does not alter the nature of the agree- 
 ment between the holder and the party liable upon the bill, 
 but only gives the holder a right to prove for a demand 
 not proveable before. So, upon the principle that a bond 
 creditor is not entitled to interest beyond the penalty, it 
 will follow, that such a creditor will, to the amount of the 
 penalty of the bond, be entitled to interest with the cre- 
 ditors of the first class, viz. of those whose debts carry 
 interest — and, for any interest beyond the penalty, he will 
 rank with the creditors of the second class. (3) 
 
 This claim, however, of the creditors for additional in- 
 terest in the event of a surplus, it has been determined, 
 cannot be set up by them so as to diminish the bankrupt's 
 allowance. (4) 
 
 Where the commission is a joint one, the creditors of the 
 separate estates are not entitled to such additional interest 
 upon their debts, until the joint creditors have also received 
 20s. in the pound, — the rule being, that where there is a 
 surplus of the separate estate, that surplus shall not go 
 immediately to pay such interest to the separate creditors, 
 but shall first be applied to make the joint creditors equal 
 
 (1) And see Butcher v, Churchill, 
 14 Ves. 575. Ex parte Hill, 1 1 Ves. 
 654. Ex parte Boyd, 1 G. & J. 
 285. 
 
 (2) Ante, 263. 
 
 (3) See Eden's B.L. 367. et seq. 
 and a note by the same learned 
 
 author, to the case of Tew v. Earl 
 of Winterton, in his edition of 
 Brown's Reports, vol. iii. 489. 
 
 (4) Ex parte Morris, 5 Bro. 79. 
 1 Ves. 152.; and see post, " Bank- 
 rupt's Allowance."
 
 Sect. 18.] OF THE PROOF OF DEBTS. 27S 
 
 with the separate creditors, as to the principal of their re- Interest. 
 
 spective debts. (1) And where both joint and separate Claims of 
 
 estates have been paid 20s. in the pound, and there hap- joint, or 
 
 pens to be a debt due from the separate estate to the joint ^^P^^^^^> 
 
 estate, or from the joint estate to the separate estate, — upon each 
 
 neither the partnership can be admitted a creditor upon '^'-"^'"' "°' 
 
 . . * to coin- 
 
 the individual partner, nor the individual partner upon the pete with 
 
 partnership, until all such additional interest is paid to <^'"^"i^o''S' 
 every class of ci'editors, who have proved debts under the 
 commission. For as the partnership itself, in such a case, 
 or some of the partners, are themselves debtors to the cre- 
 ditors of every class — and as the principle is, that the debtor 
 cannot come in competition with the creditor, — it follows, 
 that neither the partnership, nor any individual partner, 
 can claim a debt from the estate of either one or the other, 
 until all the creditors of each are fully satisfied their 
 demands — which include both the principal and interest 
 of their respective debts. (2) 
 
 Where the surplus consists of real, as well as of personal Personal 
 estate, the personal estate is first to be applied in payment ^^^^^^ |P 
 of interest — and if that is deficient, then the real estate may before real 
 be resorted to. (3) And it seems, that the commissioners ^**^^te. 
 may make the computation of such additional interest, 
 without a previous order of the Court. (4) 
 
 A creditor, who has given a receipt in full, or delivered As to cro- 
 up securities, under a mistaken impression that there would "'^or being 
 be no surplus, is not thereby barred of his right to interest 
 in the event of a surplus. (5) 
 
 Where a creditor is obliged to petition, in respect of his Where 
 proof, for payment of a dividend which has been declared ^.'^t>?*'[ ^ 
 under the commission, he will be entitled to interest upon interest 
 
 (1) Ex parte j9oarrfmaw, C.B.L. (3) Bromley v. Goodere, 1 Atk. 
 184. Ex parte C/fir^e, 4Ves. 677. 81. 
 
 Ex parte Reeve, 9 Ves. 590. (4) Ex parte Morris, 1 Ves. 132. 
 
 (2) 9 Ves. 588. (5) Ex parte Deei/, 2 Ball, & B. 
 
 77.
 
 274' OF THE TROOF OF DEBTS. [Ch. 9. 
 
 Interest such dividend ; and in such a case it was ordered to be 
 nj^g' computed at the rate of 5 per cent. (1 ) 
 
 on 
 dividend. 
 
 A plaintiff 
 recovering 
 judgment 
 before 
 bank- 
 ruptcy, 
 may prove 
 for costs, 
 though not 
 taxed. 
 
 But costs 
 incurred 
 after bank- 
 ruptcy, 
 not prove- 
 able. 
 
 Section XIX. 
 
 Costs. 
 (And see ante, " Judgments," and post, " Damages.") 
 
 By section 58. of the new statute, if any plaintifF{2) in 
 any action at Law, or suit in Equity, or petitioner in Bank- 
 ruptcy, or Lunacy, shall have obtained any judgment, 
 decree, or order, against any person who shall thereafter 
 become bankrupt, for any debt or demand, in respect of 
 which such plaintiff or petitioner shall prove under the 
 commission, he may also prove for the costs which he shall 
 have incurred in obtaining the same, although such costs 
 shall not have been taxed at the time of the bankruptcy. 
 
 But costs incurred after the bankruptcy are not prove- 
 able under the commission ; though, in actions of contract, 
 they are in general discharged by the certificate, by reason 
 that they follow the original debt. So that, if a creditor 
 bring an action against a bankrupt after a commission has 
 issued, he takes the chance of losing his costs, in case the 
 debt should be barred by the certificate. (3) 
 
 (1) Ex parte Loxley, 1 G. & J. 
 345. 
 
 (2) It will be observed, that this 
 section takes no notice of a judg- 
 ment obtained by a defendant in 
 any action or suit ; though it was 
 no" doubt intended, that the costs 
 of a nonsuit, or a judgment, in the 
 defendant's favour, occurring be- 
 fore the bankruptcy, should be 
 equally proveable with those of a 
 judgment for the plaintiff. The 
 provision contained in this section, 
 
 also, as to the proof of costs ai 
 law, seems to be wholly unneces- 
 sary ; for such costs must always 
 be taxed, before final judgment is 
 obtained ; and were, indeed, always 
 proveable, when judgment was re 
 covered before the bankruptcy 
 Gulliver v. Drinkwater, 2 T. R. 
 261. 
 
 (3) Willett V Pringle, 2 N. R. 
 1 90. ; and see Blaiidford v. Foote, 
 Cowp. 138. Lewis V. Piercy, 1 H 
 B. 29,, and see post, 278.
 
 Sect. 1 9.] OF THE PROOF OF DEBTS. 275 
 
 it* 
 
 It was for some time held — and the doctrhie was re- Costs. 
 
 cognized by many decisions (1) — that the judgment in all /-T" 
 
 actions, when signed, related back to the verdict ; and that not be 
 
 the costs de incremento upon the iudument, accordinf; to a P''°^^''' 
 
 . p , , where 
 
 fair and equitable relation of law, became annexed and judgment 
 
 consolidated with those assessed by the jury; and mijrht signed 
 
 1 1 1.11 . . ^^ . p after bank. 
 
 be consequently proved as a debt under the commission, it ruptcv, 
 
 the verdict was prior to the bankruptcy. The authority though 
 
 . verdict be 
 
 of these cases, as far as they related to the right of proof, hcfore. 
 
 was first doubted by Lord Eldon, in a very learned and 
 comprehensive judgment pronounced by him in a case, 
 where both the verdict and the judgment occurred after 
 the bankruptcy — and in which he decided that, notwith- 
 standing the costs in such a case might be discharged by 
 the certificate, they were, nevertheless, not proveable 
 under the commission. (2) In delivering his opinion upon 
 this occasion, his Lordship intimated that, in the decision 
 of the cases above referred to, (all of which had been cited 
 in the argument) the Courts had not presented to their 
 view, two former decisions of great authority (3), in which 
 a different principle was established. A case was aftei'- 
 wards sent for the opinion of the Court of King's 
 Bench; and, after full consideration of all the previous 
 authorities, that Court finally determined that, although a 
 verdict be obtained before an act of bankruptcy, yet, if 
 final judgment be not signed till afterisoards, the costs 
 could not be proved under a commission. (4) And a 
 similar decision has been since come to on this point by 
 the Court of Common Pleas, — Lord C.J. Gibbs observ- 
 ing, that the question could not be tried better, than by 
 
 (1) Ayletty. Harford, 2 Bl. 1317. (2) Ex parte Hill, 1 1 Ves. 646. 
 
 Graham v. Benton, 1 Wils. 41. (3) Ex parte TocJa?, cited 5 Wils. 
 
 sStr. 1196. More accurately re- 270. 11 Ves. 651. Walter y.Sher- 
 
 ported in 14 East, 200. note (a). /oci5:, cited ibid. 
 
 Longford \. Ellis, 1 H. B. 29. note. (4) Ex parte Charles, 14 East, 
 
 14 East, 202. note. Ex parte 197. 
 Simpson. 
 
 T 2
 
 676 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Costs. 
 
 Except in 
 an action 
 ex con' 
 iractu. 
 
 asking, whether an action can be brought upon a verdict, 
 before judgment is signed. (1) 
 
 There is a distinction, however, still taken between a 
 verdict in an action on a contract ^ and a verdict in an 
 action on a tort {2); — it having been recently decided by 
 the Vice- Chancellor, that where in an action ejc con- 
 tractu, the verdict was before bankruptcy and the judg- 
 ment afterwards, the costs de incremento are incorporated 
 with the existing debt by the verdict, though not ascer- 
 tained in amount until the judgment — and were, there- 
 fore, proveable under a commission ; but that in tort there 
 is no debt whatever, with which the costs can be incor- 
 porated, until the judgment. (3) This distinction, however, 
 •does not seem to have been much attended to by the Court 
 of Exchequer in an action for damages on a tort, in which 
 a verdict was taken subject to a reference — and in which, 
 though the award was not made, nor the judgment en- 
 tered up until after the defendant's bankruptcy — it was 
 decided, that both costs and damages could be proved 
 under the commission (4), — a decision, utterly at variance 
 with the principle previously laid down by the Lord 
 Chancellor, and the Courts of King's Bench and Common 
 Pleas, in the previous cases of ex parte Hill, ex parte 
 Charles, and Walker v. Barnes. The judgment, indeed, 
 in this case, though not entered up until after the act of 
 bankruptcy, was entitled as of the previous term (5), and 
 this may probably have been taken into consideration by 
 the Court, though it is not stated as a reason for the judg- 
 ment; for on no other principle, is it apprehended, can 
 this decision be supported. 
 
 (1) Walker v. Barnes, 1 Marsh, 
 546. 5 Taunt. 778. 
 
 (2) This distinction appears to 
 have been first acted upon by the 
 present Vice-Chancellor, though it 
 was previously approved of by 
 Lord Eldon in ex parte Hill, and 
 was also taken in argument in 
 Longford v. Ellis, 1 H. B. 29. 
 
 (o) Ex parte Poucher, 1 G. & J. 
 
 385. Ex parte Farkinson, ibid. 
 
 386, note (a). 
 
 (4) Beeston\. White,! Price, 209. 
 
 (5) And see, as to the relation 
 back of a judgment to the first day 
 of the term in which it is signed, 
 the recent case of ex parte Birch, 
 4 B. & C. 880.
 
 Sect. 19.] OF THE PROOF OF DEBTS. 277 
 
 A new line of distinction, also, has been lately adopted Costs, 
 by the Court of King's Bench, — where it has been holden, ^yj^^j!^ 
 that, if the judgment in an action of tort be obtained before judgment 
 the issuing of the commission, though not until after the act ^\^^^^'^ 
 of bankruptcy, the judgment for both damages and costs commis- 
 may then be proved as a debt hona fide contracted before «|o»> costs 
 the issuing of the commission, within the meaning of the proveable. 
 46 Geo. 3. c. 135. s. 2., — and, consequently, within the 
 ^Tth section of the present statute (1), which adopts the 
 same provisions. 
 
 Upon a careful review of all the above cases, the follow- Rules dc- 
 ing rules seem to be clearly deducible from them : i^^^^ ^ 
 
 1st. Where the verdict is not obtained until after the act the cases. 
 of bankruptcy, the costs can in no case be proved, whether 
 the action is on a contract, or in tort. 
 
 2d. Where the verdict is before the banlcruptcy, and 
 judgment is obtained before the issuifig of the commission — 
 though not till after the act of bankruptcy — then the costs 
 in actions both of contract, and of tort, may be proved, as a 
 debt contracted before the issuing of the commission, pro- 
 vided the creditor, when judgment was obtained, had no 
 notice of the act of bankruptcy. 
 
 3rd. Where the action is on a contract, and there is a 
 verdict before the bankruptcy, then, although judgment be 
 not obtained until after the bankruptcy, and even after the 
 issuing of the commission, the costs are proveable, as being 
 consolidated with the original debt by the verdict, though 
 not ascertained until the judgment. 
 
 4th. But where the action is in tort, and the bank- 
 ruptcy, as well as the issuing of the commission, occur bettsoeen 
 the verdict and the judgment ,• — then, as there is no debt 
 whatever with which the costs can be incorporated until 
 the judgment, the costs in this case cannot be proved. 
 
 With respect to costs upon a judgment of nonsuit, the As io costs 
 statute, as has been already observed (2), is wholly silent, nonsuft- 
 
 (l) Robinson v. Vale, 2 B. & C. (2) Ante, page 274. note (2). 
 762, 4 Dowl. & R. 430. Ex parte 
 Birch, 4B. &C.880. 
 
 T 3
 
 278 
 
 OF THE PROOF OF DEBITS. 
 
 [Ch.9, 
 
 Costs. 
 
 maybe 
 proved, if 
 judgment 
 entered up 
 before 
 commis- 
 sion. 
 
 In some 
 cases costs 
 not prove- 
 able, 
 though 
 barred by 
 the certifi- 
 cate. 
 
 Judgment 
 revived by 
 sci.fa. 
 
 making no provision whatever for the proof of a defendants 
 costs, whether on a judgment of nonsuit, or judgment after 
 a verdict. It was, indeed, formerly determined, that where 
 the nonsuit was before the bankruptcy of the plaintiff, the 
 costs might be proved, though the judgment was not ob- 
 tained till afterwards — on the ground that the costs related 
 back to the nonsuit (1), by virtue of which the debt might 
 be said to exist before the bankruptcy. But this position is 
 to be only found in two of the cases, which were impugned 
 by Lord Eldon in ex parte Hill (2), and which seem to 
 have been overruled by the above case of ex parte Chat'les. 
 And it has been moreover since decided, that where a 
 defendant obtains a verdict^ and the plaintiff becomes 
 bankrupt before judgment is signed, the costs cannot be 
 proved under the commission, on the principle, that no debt 
 arises in such a case until judgment is signed. (3) But in 
 a subsequent case, where the judgment on a nonsuit was 
 entered up before the commission issued against the plaintiff 
 though not until after the act of bankruptcy, the costs were 
 held to be proveable (in conformity with the principle, 
 which governed the Court of King's Bench in the above 
 case of Robinson v. Vale) as being a debt contracted before 
 the issuing of the commission. 
 
 There are several cases, as has been already observed (4), 
 where costs may be discharged by the certificate, and yet not 
 proveable under the commission (5); though formerly the 
 right of proof was considered co-extensive, in every case, 
 with the effect of the certificate. Thus, the costs of all 
 proceedings upon an action of contract, which (for want of 
 a previous verdict) cannot be proved, are, nevertheless, 
 barred by the certificate, as following the original debt. (6) 
 So, if a judgment recovered before the bankruptcy be re- 
 vived by scire facias after the bankruptcy, it has been 
 
 (1) Hurst V. Mead, 5T.R. 565. 
 Wafts V. Hart, 1 Bos, & P. 154. 
 
 (2) 1 1 Ves. 646. 
 
 (.i) Walker V. Barnes, 5 Taunt. 
 778. 1 Marsh. 546. 
 
 (4) Ante, 274. 
 
 (5) Per Lord Eldon, 1 1 Ves. 649. 
 
 (6) Ex parte Poucher, ante, 276.
 
 Sect. 19.] OF THE PROOF OF DEBTS. ,279 
 
 decided, that the bankrupt's certificate delivers him from Costs. 
 
 the costs of the sci. fa., as well as from the original judg- ' 7" 
 
 ment; but, it does not follow, that the costs of the sci. fa., bank- 
 which have been incurred by the act of the creditor in re- ''up'^cy. 
 viving the judgment, can be proved (1) under the com- 
 mission. It has been also decided, where a judgment is Quaere: 
 
 obtained before the bankruptcy — if the defendant after his ^^^^re 
 y -, ^ . . • c • , . defendant 
 
 bankruptcy brmg a writ oi error to reverse it, and the brin'^s a 
 
 judgment be affirmed — the costs of the writ of error relate ^'t of 
 back to the judgment, and are barred by the certificate. (2) bank- 
 But it would seem to follow, in this case, that the costs ruptcy. 
 could likewise be proved; for the plaintiff having in reality, 
 though not effectually, obtained judgment before the bank- 
 ruptcy, the case seems to fall within the above clause of the 
 statute, which enables a plaintiff to prove for the costs 
 incurred in obtaining judgment against any person who shall 
 afterwards become a bankrupt, though not taxed at the 
 time of the bankruptcy; and a judgment of affirmance in 
 error is equivalent to pronouncing judgment (3) in the 
 original action. And where the judgment is not obtained 
 until after the bankruptcy, in an action for a debt, and the 
 defendant brings a writ of error which is nonprossed — the 
 defendant being held to be discharged by his certificate 
 from the costs (4) — it is apprehended, that the costs in 
 this case might be likewise proved under the commission ; 
 for, the action being on a contract, they may be con- 
 sidered as incorporated with the original debt, according 
 to the principle of the foregoing cases; and being in- 
 curred, moreover, by the act of the bankrupt, and not by 
 the act of the plaintiff, it would be unreasonable to hold, 
 that the bankrupt should be discharged from them, and 
 the plaintiff be at the same time unable to prove them 
 under the commission. (5) 
 
 (1) Phillips V. Brown, 6 T. R. (4) Scoti v. Ambrose, ibid. 
 
 282. (5) The most consistent rule, as 
 
 (2) Ibid. it appears, would be, when the 
 
 (3) 3 M. & S. 326. costs are thus occasioned by the 
 
 T 4
 
 280 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9, 
 
 Costs. 
 
 Costs in 
 Chancery 
 proveablc, 
 though not 
 taxed till 
 after bank- 
 ruptcy. 
 
 Before the new statute, the costs of a suit in Chancery 
 not taxed till after the bankruptcy, though the order for 
 taxation was made before, could not be proved under a 
 commission, — it being held that it was the taxation which 
 constituted the demand ( 1 ), and that that could not relate 
 back to the order. But now, by reference to the above 
 section of the statute, it will be seen, that where the order 
 or decree is obtained before the bankruptcy, the costs of 
 obtaining it may be proved, though not taxed till after the 
 bankruptcy. Whether the words of the section will in- 
 clude the costs of a suit directed to be paid by an a^ard, 
 where there is 7io order or decree for the reference, remains 
 to be decided. (2) 
 
 Where 
 damages 
 contin- 
 gent, can- 
 not be 
 proved. 
 
 Section XX. 
 
 Damages. 
 
 (And see ante, " Judgments" and " Costs") 
 
 Where damages are contingent and uncertain, as in all 
 cases o^ tort — and also in matiy cases of a demand founded 
 upon contract, as where the damages remain to be inquired 
 into, or where damages may only by possibility arise on a 
 stipulation not previously broken — they cannot in either 
 case be proved under a commission. (3) For the 5Qth 
 section of the act, which we have already considered (4), 
 would not, it is apprehended, meet the last of these cases; 
 that section applying solely to proof of a debt (that is, a 
 sum certain) payable on a contingency — and not to an un- 
 certain sum payable upon an uncertain event. 
 
 bankrupt bringing a writ of error 
 after the bankruptcy, to hold in 
 that case, that the costs should 
 neither be proveable under the 
 commission, nor discharged by the 
 certificate, as being a debt con- 
 tracted by the bankrupt after the 
 bankruptcy. 
 
 (1) Ex parte Sneaps, C. B. L. 
 193. 
 
 (2) See Rex v. Davis, 9 East, 
 518., and Ex parte Kemshead, 
 1 Rose, 149. 
 
 (3) Utter son v. Vernon, 4 T. R. 
 571. 
 
 (4) Ante, " Contingent Debts."
 
 Sect. 20.] OF THE PROOF OF DEBTS. 281 
 
 With respect to cases o^ tort : — damages claimed for an Damages. 
 
 assault and battery ( 1 ), or for slander — or even in trespass (j^ses of 
 
 for mesne profits (2), in which the rent may not be the tort. 
 
 only measure of damage, — or damages in an action of 
 
 trover (3), if they are incapable of being liquidated, — can 
 
 in no case be proved under a commission ; for, in each of 
 
 these cases, the claim of the party amounts in law to 
 
 nothing more, than an alleged cause of action against the 
 
 bankrupt — and a jury can only determine the amount of 
 
 the damages he is entitled to — or whether, in fact, he shall 
 
 have auT/ damages at all. In one case, indeed, it was 
 
 holden, that damages (though ascertained by the verdict of 
 
 a jury before the act of bankruptcy) were not proveable, any 
 
 more than the costs, if final judgment was not signed until 
 
 after the bankruptcy. (4) But it has been since determined May be 
 
 that when the iudo-ment is obtained before the issuim of I^jo^^d 
 JO ^ G .y when 
 
 the commission^ the damages are then proveable, as con- judgment 
 
 stituting a debt contracted hona fide within the meaning of before the 
 
 . coniiiiiS" 
 
 the 47th section of the statute. (5) And in a very recent sion. 
 
 case it was holden, that though the judgment was not 
 
 actually signed until three days after the commission issued, 
 
 yet — as a judgment relates back to the first day of the 
 
 term in which it is signed, which in this case was before the 
 
 issuing of the commission — that both damages and costs 
 
 could be proved. (6) 
 
 In considering this branch of the subject, there seems to Semble, 
 
 be a distinction, between the right to prove damages already "^"^^?^' 
 
 ascertained by the verdict of a jury — and the right to prove proved, 
 
 merely upon the judgment, or for the costs. For though ^y.^^" ^f' 
 
 , , *= diet only 
 
 a judgment is not proveable, nor costs m many cases (7), before 
 unless the judgment is obtained before the issuing of the bank- 
 commission, — yet, as a uer^/cns ^nVna ya«V evidence of a 
 
 (1) Walter v. Sherlock, 5 Wils. (4) Buss v. Gilbert, 2 M. & S.70. 
 272. •' (5) Robinson v. Vale, 2 B. & C. 
 
 (2) Goodtitle v. North, Doug. 762. 4 Dowl. &R. 430. 
 
 562. (6) Ex parte Birch, 4 B. & C. 
 
 (3) Parher v. Norton, 6 T. R. 880. 
 
 695. (7) Ante, 275.
 
 282 OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Damages, debt(l), and is, at least, a guide to the commissioners to 
 measure the amount of the damages which the creditor 
 claims, it should seem, that when proof is offered merely 
 for damages (without any claim for costs) by reason of a 
 verdict before the bankruptcy, the commissioners in such a 
 case have a discretionary power to inquire into the pro- 
 priety of the verdict, and to admit the creditor to prove for 
 such damages, provided they are satisfied of the justice of 
 his claim. (2) For it is the uncertainty only of the amount 
 of the damages, which prevents their being proved under a 
 commission ; a reason which no longer holds, when they 
 are already liquidated and ascertained. Thus, where an 
 action was brought for the seduction of the plaintiff's 
 daughter, and was compromised before judgment by the 
 defendant giving the plaintiff two promissory notes in satis- 
 faction of the damages, — it was held, that the notes were 
 proveable under a commission against the defendant, as 
 being liquidated damages assessed between the parties. (3) 
 So, even in an action of trover, if the demand can be 
 liquidates, it can be proved. (4) 
 
 Where In all cases, too, where a creditor, having a right of action 
 
 creditor f^^ ^^ TORT, is entitled to waive the tort and bring an action 
 
 may waive . o 
 
 the tort as for money had and received, or upon a contract for a 
 
 and bring gjven sum, he may prove his demand (5) under a commission, 
 and re- Therefore, where goods have been paid for, but not deli- 
 ceived, vered by the bankrupt (6) according to agreement ; or where 
 ' money is levied by the sale of goods under an execution 
 which is afterwards set aside (7); or where a bill of ex- 
 change, having been entrusted to the bankrupt to receive 
 payment when due, is discounted by him, and the proceeds 
 applied to his own use (8); or where the bankrupt pledges 
 a debenture for a debt of his own, which had been de- 
 
 (1) Per Lord Eldon, 1 Rose, 1 95. (5) Wright v. Hunter, 1 East,50. 
 
 (2) Ibid. (6) Utterson v. Vernon, 5 T. R. 
 {3) Es. parte Mumford, 15Ves. 548. 
 
 B90. (7) Ibid. 
 
 (4) Per Buller J. Doug. 168. (8) Parker v. Norton, supra.
 
 Sect. 20.] OF THE PROOF OF DEBTS. 283 
 
 posited with him for a special purpose (1) ; or where money Damages. 
 is embezzled by a bailiff upon a sale of goods under a 
 distress for rent (2) ; — in all these cases, as the amount of 
 the creditor's demand against the bankrupt is capable of 
 being ascertained without the intervention of a jury, and 
 the creditor can safehj siioear to it, he is entitled to prove it 
 under the commission. But if the creditor, in any of these 
 cases, insists upon his claim for the consequential damage 
 arising from the tortious act of the bankrupt, then he can- 
 not be admitted to prove; for the damages so claimed are 
 uncertain and contingent, and can only be estimated by a 
 jury. 
 
 In regard to claims founded upon contract, such as a Claims 
 . • f I 1 
 
 demand either for goods sold, or for work and labour — 
 
 o ' _ _ on a coil' 
 
 where there is no agreement as to the price, and which tract, 
 
 would be recoverable at law in an action on a quantum though 
 
 -^ sounding 
 
 meruit — the demand, though sounding in damages, can be in da- 
 proved, because it can be easily ascertained, and the ere- mages, 
 T i-nc 1 • • o proveable, 
 ditor can have no difficulty m svveanng to the amount, oo tvhere 
 
 where a bond (as we have before seen (3) ) is given to re- amount 
 place stock on a certain day^ and the bond is forfeited certained. 
 before the bankruptcy, the damages for not replacing the Bond to 
 stock can be proved, because they can be easily estimated, replace 
 — the amount proveable in this case, being the value of the 
 stock at the date of the commission, together with the 
 amount of the dividends receivable before the bank- 
 ruptcy. (4) And where navy bills were deposited with a Account- 
 firm, who gave an accountable receipt for them, and one ''^^'^ ^^' 
 of the firm became bankrupt, the owner of the bills was navy bills. 
 held entitled to prove for the value of them on the day of 
 the deposit. (5) Not only, indeed, may the creditor prove 
 his demand against the bankrupt in any of these cases, but 
 he is now in fact compelled to do so, with a view to his 
 
 (1) Johnsonv. Spiller,Doug.l67. (4) Exparte Leilch, C.B.L. 149.; 
 
 (2) Ex parte Dobson, 7 Vin. Ab. and see ante, 256. 
 
 74. (5) Bromlei/ V. Child, I Atk. 2 5S. 
 
 (3) Ante, 236.
 
 284. 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 But not 
 
 proveable 
 
 where 
 
 damages 
 
 uncertain. 
 
 Damages, own security ; for all such demands arising from any breach 
 of contract^ which can with any certainty be liquidated, are 
 discharged when the bankrupt obtains his certificate. ( 1 ) 
 
 But unliquidated damages, though arising on a contract, 
 cannot be proved, if there is any uncertainty in the mode 
 of estimating them. Thus damages sustained from a breach 
 of covenant, in not building a certain number of houses 
 within a given time (2), in not having full power and 
 authority to sell a ship (3), or in not indemnifying the 
 assignor of a lease from the covenants contained in it (4), 
 have been in each of these cases held not proveable under a 
 commission. For in all such cases a variety of circumstances 
 must be taken into consideration, which may either in- 
 crease, or mitigate, or even sometimes altogether excuse 
 the damages, and which it is the peculiar province of a 
 jury to determine. And where there is even a penalty, or 
 specific sum of money made payable in a bond of in- 
 demnity, or covenant to secure performance — as upon a 
 covenant in a lease not to plough up ancient meadow — the 
 penalty, it has been held, cannot be proved as a debt ; as 
 it is not the measure, but only Ihnits the extent, of the da- 
 mages to be claimed in case of a breach. (5) 
 
 (1) Forster v. Surtees, 12 East, 
 605. 
 
 (2) Bannister v. Scott, 6 T. R. 
 489. 
 
 (3) Hammond v. Toulmin, 7 T. 
 R.6ia. 
 
 (4) Mai/or V. Steward, 4 Burr. 
 5439. Ludford v. Barber, 1 T. R. 
 86. Auriol V. Mills, 1 H. B. 433. 
 4T.R. 94. 
 
 (5) 5 Wils. 270.
 
 Sect. 21.] OF THE PROOF OF DEBTS. 285 
 
 Section XXI. 
 Sureties. 
 
 1. As to the Bights of a Creditor against the Banh-upt 
 
 Surety. 
 
 2. As to the Rights of the Solvent Surety against the Bank- 
 
 rupt Debtor, or Co-Surety. 
 
 1. As to the Rights of the Creditor agai?ist the BaJifcrupt 
 
 Surety. 
 
 Where a surety has become bankrupt, the right of the Right to 
 
 creditor to prove under the commission has been con- pj'oye 
 
 f 1 against 
 sidered to depend upon, whether the engagement or the surety, 
 
 surety was absolute, or conditional, at the time of the bank- ^'^^^ ^*^, 
 
 . . uepcnds* 
 
 ruptcy. For the 49 Geo. 3. c. 121. s. 8. which gave reHef 
 
 to the surety as a creditor, has been held not to apply to 
 
 cases, where the. surety himself becomes bankrupt [\) ; and 
 
 there is nothing contained in the corresponding section of 
 
 the new statute, which alters the law in this respect. Such 
 
 cases, therefore, must be considered as falling within the 
 
 rule respecting contingent debts contained in the 56th 
 
 section of the new statute. (2) 
 
 If the engagement of the surety be absolute, the creditor Where the 
 
 has a right of course to prove, independently of the power ^"S^g^- 
 
 , , 7.1 1 "'C"t ab- 
 
 given by the B6th section — as where the surety enters solute, cre- 
 
 with the principal into a joint and several bond payable by ^'''^'' '"^y 
 
 instalments, and before the first instalment falls due, the course, 
 
 surety becomes bankrupt; — for in such a case the surety 
 
 himself is considered as a principal. (3) But, if in this deducting 
 
 case the principal, as well as the surety, become bankrupt, what he 
 
 received. 
 (1) Ex parte McMillan, Buck. (2) See ante, " Contingent 
 287. Debts." 
 
 (.-) Brooks V. Lloyd, 1 T. R. 17.
 
 ^8a 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Proof 
 against 
 sureties. 
 
 When the 
 engage- 
 ment con- 
 tingent, 
 cannot be 
 proved 
 before con- 
 fcingency. 
 
 and the obligee first proves his whole debt against the 
 principal, and i-eceives a dividend, he must deduct the 
 amount of the dividend, and prove against the surety only 
 for the residue. ( 1 ) So, indeed, where the engagement is 
 not decidedly absolute — as where the creditor receives a 
 bill of exchange from a surety, to secure the payment of 
 goods sold to the principal, which are afterwards partly 
 paid for by the principal — the creditor can only prove 
 against the estate of the surety, the sum remaining due for 
 the goods (2), and not the full amount of the bill. And 
 where A., previous to bis bankruptcy, guaranteed B. and 
 Co. against any loss, on account of the non-payment of an 
 instalment by certain joint debtors of B. and Co. ; and one 
 of the joint debtors becoming bankrupt, B. and Co., under 
 an order for the proof of joint debts under his separate 
 commission, proved the amount of the instalment, and re- 
 ceived a dividend, — it was ordered, that the benefit of the 
 future dividends should be sold, and the produce paid to 
 B. and Co. — and that the monies so received by them, to- 
 gether with the amount of the former dividend, should be 
 deducted from the instalment — and that B. and Co. might 
 then prove for the difference under A.'s commission. (3) 
 
 If the engagement of the surety be only collateral^ and 
 depending on a contingency, then, unless the contingency 
 has happened before the application to prove, the debt 
 cannot be proved under a commission against him ; unless, 
 indeed, it can be considered such a contingent debt, as that 
 a value can be set upon it by the commissioners under the 
 SQili section. It will be advisable, perhaps, to consider 
 some of the decisions on this head, notwithstanding they 
 occurred before the present statute, the better to inquire 
 how far the words of the new enactment as to contingent 
 debts will be applicable to cases of a similar nature. 
 
 (l) Ex parte Wildman, 1 Atk. (2) Ex parte J?m£?er, Buck.381.; 
 109. 2 Ves. 115. Master V. Buclc- and see ante, 249. 
 nell, 2 M. & S. 59. (s) Ex parte Beid, Buck. 259.
 
 SeJCtJ 21.] OF THE PROOF OF DEBTS. 287 
 
 Where a surety joined in a bond, conditioned that the Proof 
 
 against 
 sureties. 
 
 principal, his executors, or administrators, should repay '^~'^"" 
 
 the money within twenty days after the expiration of five 
 years, in case he should so long live and enjoy the benefit ^ "." ^ 
 of the loan ; and if he died before, then that his executors, 
 &c., should repay it within three months after his death, — 
 the bond in this case was held not proveable under a com- 
 mission against the surety, unless there had been a pre- 
 vious forfeiture by the breach of any of the conditions. ( 1 ) 
 So, where J. S. agreed to pay a sum of money to A. by or cove- 
 instalments, and B. covenanted with A., that in case the "^"*' 
 said sum, or any instalment thereof, should not be paid to 
 A. at the times, and in the manner, provided for by the 
 articles, B. would upon demand pay to A. the said sum, or 
 so much thereof as should not be paid at the said times, 
 &c. — and no instalment became due until after a commission 
 of bankrupt issued against B. — it was held in this case, 
 that A. could not prove under the commission (2) ; 
 though now, it is apprehended, under the 56th section 
 of the new statute, he might prove for any instalment 
 already due, notwithstanding it did not become due until 
 after the issuing of the commission. So, where a surety, or agree- 
 in consideration of a premium, gave a promise in writing '"^"^ *^ 
 to be answerable for the due payment of a note of hand contin- 
 of a third person, and before the note was due became a S^"* P^y" 
 bankrupt, — it was held, that the creditor was not entitled, 
 upon such an undertaking, to prove the amount of the note 
 under the commission. (3) But if in this case, also, the note 
 had been due, and default had been made in the payment 
 of it before the application to prove it against the surety, 
 he creditor would, under such circumstances, be admitted 
 now to prove it as a contingent debt. 
 
 Where a man becomes bail for another, and before he As to bail, 
 
 is fixed, is made a bankrupt — or if he is bail in error, and P'"^^^^'^^" 
 ' ^ now be 
 
 (1) Alsop V. Price, Doug. 160. (.5) Ex parte Adney, Cowp. 460. ; 
 
 (2) Hoffham v. Foudnnier, 5 M. and see ex parte Gardner, 1 5 Ves. 
 &S.21. 286.
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Proof 
 against 
 sureties. 
 
 made, 
 though 
 not fixed 
 till after 
 bank- 
 ruptcy. 
 
 Where 
 surety dis- 
 charged by 
 creditor 
 taking a 
 collateral 
 security, 
 or com- 
 position. 
 
 On a bond 
 for per- 
 formance 
 of cove- 
 
 becomes bankrupt before judgment is affirmed — the debt in 
 each of these cases, being contingent at the time of the 
 bankruptcy, could not formerly be proved against him. (1) 
 But now, if judgment be affirmed in error, or the bankrupt 
 be fixed as bail in the action, before the application to 
 prove, the time of the bankruptcy would make no differ- 
 ence in the right of proof. 
 
 The discharge of the principal debtor is in general a 
 discharge of the surety; and an agreement by the creditor 
 to take a collateral security from another person in full of 
 his demand, operates to the same effect. (2) But the dis- 
 charge of a surety by the creditor has not the effect of 
 discharging the principal, nor does it operate as a discharge 
 of the co-surety. Therefore, where a promissory note was 
 made by a principal and three sureties, and two of the 
 sureties and the principal became bankrupt, and the holder 
 of the note proved the amount under each commission, and 
 afterwards received a composition of 45. in the pound from 
 the third surety, — it was held, that this was not a discharge 
 of the maker of this note, or of either of the two other(3) sure- 
 ties. It is competent also for a creditor, executing a deed 
 of composition with the principal, to reserve his remedy 
 against the surety, by a stipulation to that effect in the deed 
 of composition. (4j) And a creditor holding a bill of ex- 
 change as a security from three partners, though he takes 
 the notes of one of them as a collateral security, without 
 the knowledge of the other partners, retaining the original 
 security in his hands, does not by so doing discharge the 
 other partners. (5) 
 
 "Where a surety enters into a bond with the principal, 
 conditioned for the performance of covenants in a lease, 
 the surety is still liable, though the principal is discharged 
 
 (1) Hockley v. Merry, 2 Str. (4) Ex parte Carslairs, Buck. 
 1045. 560, Ex parte Glejidining, ibid. 
 
 (2) Lewis V. Jones, 4 B. & C. 517. 
 
 506. (5) Bedford v. Dealcin, 2 Star. 
 
 (3) Ex parte Gjjfora', 6 Ves. 805. 178.
 
 Sect. 21.] OF THE PROOF OF DEBTS. 289 
 
 by bankruptcy and certificate from the covenants contained Sureties. 
 ill it, under the 75th section of the new statute. (1) tiants 
 
 It seems to be pretty well settled now, in courts of law surety still 
 at least, that an agreement to pay, or be answerable for, the "^."'^.^'jf 
 debt of another must, according to the construction of the discharge. 
 4th section of the statute of frauds (2), not only be in 
 writing, but must also contain the consideration for the 
 promise, as well as the promise itself. (3) Some doubts 
 upon this point are reported to have been expressed by 
 Lord Eldon, but they seem to be merely obiter dicta, and 
 to have occurred moreover in cases where the consider- 
 ation did, in fact, sufficiently appear in the agreement. (4) 
 Notwithstanding, also, the attention of the Judges has been 
 especially called to a consideration of these doubts in two 
 subsequent cases, both the Courts of King's Bench and 
 Common Pleas have confirmed the doctrine laid down in 
 Wain V. Warlters. (5) 
 
 2. As to the Rights of the Solvent Surety against the Bank- 
 rupt Debtor, or Co-surety. 
 
 There have been many conflicting decisions respecting When 
 the right of the surety to prove a counter-security against ^"'"^^ 
 the principal debtor, where the surety had not himself been prove a 
 actually obliged to pay the money before the bankruptcy <^oiinter- 
 of the principal. At one time (as we have before seen in 
 the case of a bill or note (6) ) it was holden, that if he had 
 taken a counter-security, which was payable absolutely at a 
 day certain, — then, though the principal had become bank- 
 rupt before the counter-security was payable, and before 
 the surety had either paid, or been called upon to pay his 
 engagement to the creditor, the surety was permitted to 
 
 {\)Inglis\.Macdougal, 1 Moore, 595. Jenkins v. Reynolds, 5 B. & 
 
 196. B. 14. 
 
 (2) 29 Car. 2. c. 3. (4) Ex parte JMinet, 14 Ves. 190. 
 
 (3) Wain v. Warlters, 5 East, 10. Ex parte Gardom, 1 5 Ves. 286. 
 Saunders v. Wakefield, 4 B. & A. (5) 4 B. & A. 595. 3 B. &• B. 14. 
 
 (6) Ante, 256.
 
 290 OF THE PROOF OF DEBTS. [Chap. 9. 
 
 Pico/by prove his counter-security immediately under the com- 
 hut^ej^s^ mission ; upon the principle, that the counter-security was 
 an absolute debt at law, for which there was a sufficient 
 consideration created by the liability of the surety. (1) In 
 subsequent cases it was holden, that the surety could not 
 prove upon such counter-security, unless he had taken up 
 his own bills, or had paid the original debt (if upon bond) 
 — so that the bankrupt's estate, before it was charged with 
 the claim of the surety, might at all events be exonerated 
 from the original debt. (2) But where the counter-security 
 was only conditional, such as a bond to indemnify the 
 surety against his being called upon to pay the money, and 
 there was no breach of the condition before the bankruptcy, 
 it was there held, that the surety could not prove, — as the 
 debt in that case was only contingent. (3) Though at the 
 same time, where the indemnity bond was forfeited before 
 the bankruptcy, the surety was then considered entitled to 
 prove his bond, notwithstanding he had paid no part of 
 the sum, for which he had become surety, until after the 
 bankruptcy. (4) 
 When he I" ^^ cases, however, where the surety had no counter- 
 could not security from the principal, or nothing but a mere under- 
 prove a taking of indemnity, it seems to have been the uniform 
 decision of the Courts, that the surety then, though he had 
 made himself absolutely liable for the debt, could not 
 prove under the commission, unless he had actually paid 
 the debt before the banh'uptcy of the principal ; and that 
 any payment after the bankruptcy only gave him a per- 
 sonal remedy against the bankrupt, and did not enable 
 liim to prove. And the reason of this was, that there was 
 
 (1) Rolfe V. Caslon, 2 H. B. 570. (2) In re Bowness, C. B.L. 161. 
 
 Ex parte Misrj/rfwf//, cit. ibid. 571. Ex parte Findon, ibid. 149. Ex 
 
 C. B. L. 157. Ex parte Beaufuy, parte Brown, ibid. Ex parte Wal- 
 
 ibid. 158. Ex parte Clam-icarde, ^cr, 4 Ves. 385. 
 
 ibid. Totissaint v. Martinnant, {3) Martin v. Court, 2 T.R. 640. 
 
 2 T. R. 1 00. Martin v. Co7ist, ibid. Crookshank v. Thomson, 2 Str. 1 1 60. 
 
 640. Hodgson V. BcH, 7 T.R. 97. (4) Ex parte Cockshott, 5 Bro. 
 
 502. Hodgson v. Bell, supra.
 
 Sect. 21.] OF THE rnoor or df.et,';. 291 
 
 no existing debt between the principal and tlie surety, Proof hi/ 
 before the latter had paid the money to the creditor.(l) ' H 
 
 These disabihties were, however, always considered to When 
 be a great hardship upon the surety, when he was obliged ^"^ij' 
 to pay the money after the bankruptcy of the principal ; stand in 
 and, therefore (as has been already observed (2) ) the Courts ^'f^.i^g^Qri- 
 lield, in cases when the creditor had already proved under ginal cre- 
 the commission, that the surety had an equitable right to '"^^'■* 
 stand in the place of the original creditor, and to receive 
 dividends upon such proof (3) And if the creditor had not 
 proved, the Court of Chancery would, upon a bill filed by 
 the surety against the creditor, order the latter to prove the 
 debt, upon the surety bringing the amount (4) of it into court. 
 But if the surety had paid the debt after the bankruptcy of 
 the principal, and before the creditor had proved, in that 
 case it could be proved by neither creditor nor surety. (5) 
 
 In order to avoid this circuitous mode of sureties ob- Surety 
 taining relief, and to put them upon a fair and equitable "^^^ ^^ ^° 
 footing with the other creditors of the bankrupt, it was (as has prove him- 
 been before stated under the section relating to bills of ex- ^^^> 
 change (6) ) first provided by the 49 G. 3. c. 121. s. 8. — and pays the 
 this provision has been adopted, and somewhat extended in '"oney 
 the new statute (7) — that any person, who at the issuing of commis^ 
 the commission shall be surety or liable for any debt of the pion 
 bankrupt, or bail for him either to the sheriff or to the '**"^** 
 action, and who shall have paid the debt, or any part thereof 
 in discharge of the whole debt, (although he may have paid 
 the same after the commission issued) may, if the creditor 
 
 (l) Smithson v. Johnson, Barnes, (2) Ante, 254. 
 
 115. Goddard v. Vanderheyden, (3) Ex parte Ryswicke, 2 P. 
 
 oWils. 262. Bl. 794. Taylor v. Wms. 89. Ex parte Marshal, 
 
 Mills, Cowp. 525. Paid V. Jones, lAtk.129. Ex parte Matthews, 
 
 1 T. R. 599. Kettear v. Paynes, 6 Ves. 285. Ex parte Atkinson, 
 
 1 Bro. 384. Chilton v. Whiffin, C. B.L. 210. 
 
 sWils. 13. Youngv. Hoclcley,B\. (4) Beardmore v. Cnittenden, C 
 
 839. 3\Vils. 346. Vanderheyden B.L. 211. 
 
 V. De Paiba, 3 Wils. 528. Hes- (5) Ibid. 
 
 kuyson v. Woodbridge, Doug. 166. (6) Ante, 254. 
 
 Ex parte Marshall, 1 Atk. 130. (?) Section 52 
 Brookes V. Rogers, 1 H. B. 640. 
 Hojvis V. Wiggins, 4T. R. 714. 
 
 u 2
 
 292 
 
 OF THE PROOF OF DEBTS. 
 
 [Cliap. 9. 
 
 Proof hi) 
 sureties. 
 
 Bail have 
 the same 
 privilege. 
 
 How far 
 surety 
 bound by 
 proof of 
 creditor, 
 or com- 
 pelled to 
 prove. 
 
 shall have proved his debt under the commission, stand in 
 the place of the creditor as to the dividends, as well as to 
 all other rights tinder the eommission iiohich the creditor pos- 
 sessed, or xwidd he entitled to in respect of such proof [l); — 
 or, if the creditor shall not have proved, then the surety, 
 or person liable, or bail, may prove his demand in respect 
 of such payment as a debt under the commission, (not dis- 
 turbing the former dividends) and may receive dividends 
 with the other creditors, although he may have become 
 surety, bail, or liable as aforesaid, after an act of bank- 
 ruptcy committed by the bankrupt ; provided that when 
 he became so he had no notice of any act of bankruptcy. 
 
 This section, it will be perceived, extends the right of 
 proof to bail, who were held not to be included in the 
 provisions of the 49 G. 3. c. 121.(2) With that exception, 
 therefore, all the cases determined under the 8th section of 
 that statute will be applicable to the construction of the 
 corresponding section of the new act. 
 
 From the wording of the above section, it would seem 
 that the provision is intended more for the benefit of the 
 surety, than that of the bankrupt ; as it enables the surety 
 merely, and does not compel him, either to prove himself, 
 or to stand in the place of the creditor who has proved, and 
 receive the dividends upon his proof. And the case of 
 Mead v. Braham (3) favours this construction, in which it 
 was held, that the surety was not bound by the proof of the 
 creditor. But where the surety receives dividends on the 
 proof of the creditor, there he is estopped from proceeding 
 afterwards against the bankrupt. Therefore, where a bill 
 of exchange accepted by the bankrupt had been proved by 
 an indorsee under the commission, who afterwards received 
 the amount from the drawer, and the drawer then received 
 a dividend upon the proof, and afterwards arrested the 
 
 (1) The words in italics, are not 
 in the 49 G. 3. 
 
 (2) Hmves v. Mott, 6 Taunt. 
 329. 2 Marsh, 192. Neiuington v. 
 Keys, 4B.& A. 495 
 
 (5) 2 M. & S. 91. ; and see ante, 
 152., and Toumsend v. Downing, 
 14 East, 565.
 
 Sect. 21.] OF THE PttOOF OF DEBTS. 293 
 
 bankrupt (who had not obtained his certificate) for the Proof by 
 
 balance; — the Lord Chancellor, upon the petition of the '^ 1 
 
 bankrupt, ordered that he should be discharged out of 
 custody at the suit of the drawer. (1) And, as the certifi- 
 cate now releases the bankrupt from all claims and de- 
 mands made proveable under the commission (2), it follows, 
 that the above section is so far compulsory on the surety, 
 that in all cases where he 7)u'ghi have proved against the 
 bankrupt, the certificate will be a bar to any action brought 
 afterwards by the surety. 
 
 Having already fully considered the right of proof by 
 sureties on bills and notes (3), as well as that of sureties 
 for the payment of annuities (4), it will be sufficient on the 
 present occasion to confine our attention to those cases, 
 which involve the rights of sureties on other instniments. 
 
 Where a surety joined in a bond to a banker for 10,000/., Surety by 
 for payment within two months after notice of every sum of ?^, ^" ^" 
 money, which the obligee should at any time pay or ad- obligee's 
 vance on account of the principal, by payment of or discount- \l^ ^° ^ 
 ing drafts, bills, &c. — and the principal conve^^ed an estate of balance 
 to the surety as an indemnity, and afterwards became a unsatisfied 
 bankrupt — upon which the obligee proved under the com- counter- 
 mission a debt of 20,000/. due from the bankrupt upon the security. 
 balance of the standing account ; — the surety in this case, 
 upon payment of the 10,000/., was held entitled to the 
 benefit of such proof, to the amount of the difference be- 
 tween the 10,000/., and the value of the proceeds of the 
 sale of the estate. (5) So, where a surety had entered Surety in 
 into a bond to the king, for the payment by the bankrupt ^^eTinf^*^ 
 of the duties received by him as distributor of stamps, and for stamp 
 after the bankrupt had obtained his certificate, the surety ""ties.may 
 
 1 'J iirnvp. 
 
 was obliged to pay a sum of money due to the crown ; — it 
 
 (1) Ex parte Lobbon, 17 Ves. (") See ante, 255. et seq. 
 334. (4) Ante, 251. 
 
 (2) Section 121.; and see Van- (5) ¥i\ ^axte Rushforth, 10 Ves. 
 sandan v. Corsbie, 8 Taunt. 550. 409. 
 2 Moore, 602. 5B. &A. 13. West- 
 cott V. Hodges, 5 B. & A. 12. 
 
 U 3 
 
 prove.
 
 294. 
 
 OF THE PROOF OF DEBTS. 
 
 [Chap. 9. 
 
 Vroofhij 
 surclics. 
 
 Surety en- 
 titled to 
 the rights 
 of the cre- 
 ditor, in 
 respect of 
 trie cer- 
 tificate, as 
 well as of 
 the di- 
 vidends. 
 
 Surety for 
 rent not 
 due at the 
 bank- 
 
 rwptcy, not 
 within the 
 above 
 6ection. 
 
 was held, that the surety could not sue the bankrupt for 
 the amount so paid, as he might have proved it under his 
 commission. (1) In this case it was urged, that the statute 
 did not contemplate the case of a surety in a bond to the 
 king, but only to a common creditor, who might, or might 
 not, prove under the commission ; whereas there was no 
 instance of the crown proving under a commission : but 
 the Court decided that, in order to bring the case within 
 the statute, it was not necessary that the principal creditor 
 should be enabled to prove, or that the bankrupt should 
 be discharged by his certificate if he does not prove ; and 
 that the case did not differ from that of a surety in a bond 
 to a private person. (2) 
 
 A surety, paying the debt after proof by the creditor, is 
 not only entitled to stand in the place of the creditor in 
 respect of the dividends on the proof, but also in respect 
 of his right as to the bankrupt's certificate. (3) This de- 
 cision, which was upon the construction of the 49 G. 3. 
 c. 121. s. 8., is still more fortified by the additional words 
 introduced into the above section of the new statute, which 
 expressly declares, that the surety in such a case shall be 
 entitled to stand in the place of the creditor as to the 
 dividends, and all other rights under the commission, which 
 the creditor possessed or would be entitled to in respect of 
 such proof. 
 
 It has been determined, that a surety for the payment 
 of rent by a bankrupt to his landlord, where there is no 
 rent due at the time of the bankruptcy, is not within the 
 terms of the above section, which relates only to securities 
 for debts of the bankrupt due at the time of issuing the 
 commissiofi ,- and, therefore, where a surety in such a case 
 was obliged to pay for three years' rent, which became 
 due after the bankruptcy, it was held, that he might sue the 
 bankrupt to recover it (4), notwithstanding his certificate. 
 
 (1) Wcitcott 
 
 A. 12. 
 
 (2) Ibid. 
 
 V. Hodges, 5 B. & 
 
 (.3) Ex parte Gee, 1 G.& J.550. 
 
 (4) ArBoiigalv. Fato}i, 'J Moore, 
 
 644. 8 Taunt. 584. Mr. Edeu, in
 
 SeCt.21.] OF THE PROOF, OF DEBTS. 295 
 
 The statute, also, only applies to cases wl^re the surety Proof by 
 
 has paid the idiole debt, or part in discharge of the whole ; " ^''^^^^^^ 
 
 and not where he merely pays part in discharge of his own Nor a 
 
 personal liability. Therefore, where a surety in a warrant ?"'"^typay- 
 
 . . . . ing only 
 
 of attorney, in order to discharge himself, paid part of the part of 
 
 debt remaining due to the creditor (who had previously ^^^ ^^'^^' 
 proved under the commission), and thereupon satisfaction 
 Avas entered upon the record, — it was held, that as this was 
 not a payment of part of a debt in discharge of the "iSohole^ he 
 could not stand in the place of the creditor who had pre- 
 viously proved. (1) If a surety, also, should after the Cannot 
 bankruptcy of the principal, besides the debt, pay the interest 
 ifiterest accrued thereon subsequent to the bankruptcy, he ^'"'■e 
 will not be permitted to prove such subsequent interest; mptcv. 
 for all that is contemplated by the above enactment is, that 
 the surety may prove as the principal creditor. (2) 
 
 If a surety in a bond for a bankrupt, after the bankrupt Nor when 
 obtains his certificate, joins with him in a new bond to the •^'^ "''^f "^sij 
 representatives of the creditor, and the old bond is de- bond after 
 
 his Treatise on the Bankrupt Law, whole future rent reserved in a 
 page 151- suggests, whether a case lease to the bankrupt, and be per- 
 like the above would not be varied mitted to prove the amount as a 
 now, by the provision as to con- contingent debt, — it is apprehend- 
 tingent debts, contained in the 5Qth ed, thiit a mere surety for the rent, 
 section of the new statute. But it who might never be called upon 
 is submitted, that unless the surety for a farthing, could still less have 
 has entered into a bond, or other a value set upon his liability, and 
 specialty, to the lessor for the pay- prove for the amount. And — if he 
 ment of the rent, the mere liability cannot have a value set upon his 
 to pay it (in respect of which a debt liability — he cannot prove, when 
 may only by possibility be created) the contingency happens, and he is 
 cannot be considered as a debt al- actually obliged to pay the rent ; 
 ready contracted payable on a con- for the statute only enables the 
 tingeney, so as to bring it within the party to prove after the contin- 
 56th section. Nor does the case, gency, " in respect of such debt," 
 indeed — even if a bond were given previously mentioned in the see- 
 by the surety — appear to come tion, — that is, such a debt as the 
 within the meaning of tiiat section ; commissioners can set a value upon 
 which enables the commissioners to before the contingency happens. 
 set a value upon the debt, before the See also the following case. 
 contingency happens, and to admit (l) Souttenv. Soutten, 5 B. & A. 
 the creditor to prove for the amount. 852. 
 
 For, unless the lessor (which would (2) Ex parte IVikon, 1 Rose, 137. 
 
 seem a very preposterous case) Ex parte Houston, 2 G. & J. 36. 
 could have a value set upon the 
 
 VOL. I. * U 4
 
 296 OF THE PROOF OF DEBTS. [Chap. 9. 
 
 Proof by livered up to the surety, this is not equivalent to payment 
 s ureties. ^^ j.}jg surety, so as to enable him to prove under the corn- 
 bankrupt's mission ; for the transaction amounts to an entire release 
 certificate, ^f [he old debt by the obligee, and the surety stands after- 
 wards in quite a different character, being no longer surety 
 for the bankrupt's estate, but for a new obligation created 
 subsequent to the certificate. (1) 
 Whether It was decided by the late Vice-Chancellor, that the 
 
 the substi- substitution by one co-surety, without the knowled<>;e of the 
 tution by / . . , i • i 
 
 a co-surety other, of a different security, in the place of that on which 
 
 ot a difler- ^^ were severally liable, does not oive such co-surety any 
 ent instru- / . •' . ^ r i • i 
 
 inent gives claim against the other, as havmg paid the debt, for which 
 him a claim g^^|j ^^.^^ liable on the original instrument. Thus, where 
 other CO- I^-> ^or the accommodation of C. & Co., drew on J. & Co. a 
 surety. \y\\\^ which they accepted — J. & Co. drawing on R. another 
 bill, which he accepted — and both bills were indorsed to 
 C. & Co. ; and (J. & Co. before their acceptance fell due 
 having become insolvent) the holders called upon R. as 
 drawer for payment — who thereupon, for the accommoda- 
 tion still of C. & Co., obtained an acceptance of T. in lieu 
 of that given by J. & Co. — and R. proved the amount of 
 such acceptance under a commission against J. & Co. ; — Sir 
 J. Leach, under these circumstances, ordered the proof to 
 be expunged, the dividends repaid, and the acceptance de- 
 livered up ; as he considered, that the new security given 
 by R. was one with which J. & Co. had no concern, and 
 that their estate could not, therefore, be charged with the 
 consequences of it. (2) But Lord Eldon, when this case 
 came before him upon appeal, thought that the ques- 
 tion was merely who were sureties, and who were princi- 
 pals, in these counter-acceptances ; and that R. being the 
 surety (as drawer) for J. & Co., as to those bills drawn by 
 him and accepted by them, the question was to be decided 
 by the general law between acceptors and drawers, when 
 the drawers pay for the acceptors ; — and the Vice- 
 Chancellor's order was reversed. (3) 
 
 (l) Ex parte Scrsreant, 1 G. &J. (2) Expartc77?in/c?-,5Mad.l65. 
 1 85. 2 G. & J. 2.-. (3) Ex parte Hunter, 2 G. & J. 7.
 
 Sect. 22.] OF THE moor of debts. 297 
 
 Where partners dissolve their partnership — one partner Sureties. 
 
 retiring, and the other continuing the business, and cove- » T^ 
 
 nanting to pay all the debts, — if the latter becomes bank- partner in 
 
 rupt, and the retiring partner is obliged to pay any of the ^ "^*'"'"*^ 
 
 ,{_ 1 II °' ^ surety, 
 
 debts, he can prove such payment under the commission ; 
 
 as he is in the nature of a surety for the continuing part- 
 ner. (1) 
 
 Section XXII. 
 
 Creditors hy Composition. 
 
 Where a creditor agrees with his debtor to take a com- Where 
 position in lieu of his debt, on condition that the money is creditor 
 
 • J ^ . 1 ^ r r -^ • i not bouod 
 
 paid on a certain day, and arter tailure m such payment, i^y compo- 
 the debtor becomes a bankrupt, — the creditor is entitled in si^i^n ; 
 that case to prove for the whole of his original debt, or for 
 such part as remains unpaid — and not merely for the amount 
 of the composition. For the general rule in equity is, that 
 the Court will not dispense with the point of time in the com- 
 position of debts, as they will where it would work a for- 
 feiture ; and that where a creditor thus agrees to take less 
 than his debt, so that it be paid precisely at the day, and 
 the debtor fails in payment, the latter cannot (2) be released. 
 
 Therefore, where a trader entered into a deed of com- and may 
 position with his creditors, by which they agreed to take V^ove for 
 10^. in the pound on their respective debts by instalments, due of his 
 to be secured by his promissory notes, and the creditors debt re- 
 covenanted that they would, as soon as such promissory unpaid^ 
 notes should be paid, release and discharge the trader — 
 and the deed also contained a proviso, that in case of de- 
 fault made in such payment, or if any commission should 
 issue before the whole of the composition should be paid, 
 then the covenants, on the part of the creditors whose 
 
 (1) Wood V. Bodgson, 2 M. & {ti) Scwcll v. Masson, 1 Vern. 
 S. 195.; and sec post, title "Part- 210. Eq. Ca. Ab. 28. s. 3. Hcath- 
 ners." cole v Crookskanks, 2 T. R. 24.
 
 29S 
 
 OF THE rUOOF OV DEBTS. 
 
 [Chap. 9. 
 
 Composi- 
 tion. 
 
 Where he 
 cannot 
 prove for 
 residue. 
 
 debts should be so unsatisfied, should be null and void — 
 the first instalment was paid, the second was due and 
 unpaid, and a commission having issued against the 
 trader, — Lord Eldon under these circumstances held, 
 that the creditors were entitled to retain the first instal- 
 ment, and to prove for the residue of their original debts. (1) 
 So, where a trader assigned certain book-debts, in trust 
 to pay the creditors who should execute the deed, and 
 covenanted that if the creditors should not, out of that fund, 
 be paid in full within two years, he would pay the defi- 
 ciency within a month afterwards — and before the end of 
 the two years the debtor became a bankrupt, — it was held, 
 that the creditors under the deed were entitled to have the 
 j-emaining debts of the trust fund sold, and the produce 
 divided amongst the creditors under the trust deed, jpari 
 -passu, having regard to what had been already received ; 
 and that, after such application of the trust fund, the cre- 
 ditors were entitled to prove for the deficiency under the 
 commission. (2) But if a creditor under a composition has 
 not received his instalments before the bankruptcy takes 
 place, and tliere is no fund separated for the payment of 
 them, he cannot have them out of the bankrupt's estate, 
 and prove the residue of the debt ; but he must then come 
 in as the other creditors (3) at the date of the bankruptcy. 
 Where, however, there is an actual r-elease of the debt in 
 the composition deed, and no default made before the bank- 
 ruptcy in the payment of any of the instalments, then the 
 creditor cannot prove for the residue of the original debt, but 
 only for the remaining instalments. As, where a deed of com- 
 position stipulated that if the instalments should not be duly 
 and regularly paid, the release thereby given by the creditors 
 should be void — and all the instalments, which had become 
 due before the bankruptcy, were regularly paid ; — in this 
 
 ( 1 ) Ex parte Verc, 1 Rose, 28 1 . 
 1 y Ves. 93. 
 
 ('-!) Ex parte Ric/tardsuu, 14 Ves. 
 184. 
 
 (.3) Ex parte JD'Olivicra. Ex 
 parte Von Hulk; 14 Ves. 184.
 
 Sect. 23,] OF THE PROOF OF DEBTS. 299 
 
 case Lord Eldon held, that the creditor ought not to prove Compost- 
 the residue of the debt, but only the outstanding instalments : ' ""' 
 for that, as there had been no default before the bankruptcy, 
 and the bankrupt had been released from his debts, no- 
 thing whatever was then due to the creditor. ( 1 ) In a former 
 case, however, where the bankrupt had paid the first in- 
 stalment — and though the creditor had waived the default 
 in the payment of the second, by accepting two notes of hand 
 which were not due at the time of the bankruptcy, — Lord 
 Hardwicke thought it would be a hard case, if the creditor 
 was not admitted to prove the whole of the remainder of 
 his original debt. (2) 
 
 If a creditor, to induce another creditor to come to an Where a 
 arrangement with his debtor by composition, or otherwise, u^*^*^^i , 
 conceals his own debt, holding out that he is no creditor, — his own 
 
 the party is bound by such misrepresentation, and, in case ™isrepre- 
 1 • • 1 ■■ rr. -11 1 1 1 1 <- . sentation. 
 
 the composition take eiiect, will be precluded irom proving 
 
 his own debt. (3) But when the proposed composition or 
 
 arrangement does not take effect, then the party, however 
 
 fraudulent his intention, will not be bound (4) by such 
 
 misrepresentation. 
 
 Section XXIIL 
 Friendly Society Act. 
 
 By the 33 Geo. 3. c. 54. s. 10. for the encouragement 
 and relief of friendly societies, it is provided, that if any 
 person appointed to any office by any such society, and 
 being entrusted with, or having in his hands or possession, 
 any monies or effects belonging to such society, or any 
 securities relating to the same, shall die, or become a 
 
 (1) Ex parte Peele, 1 Rose, 455. 1 Anst. 202. EastabrooJc v., Scott, 
 
 (2) Ex parte Bennett, 2 Atk. 3Ves.456. Ho/mer v. Finer, lEsp. 
 527. 132. Ex parte Gardnej; llVes. 
 
 (3) Monlefiori v. Montc/iurl, 24 4. 
 
 1 Bl. 563. Cecil V. Piaislou', (J) Ex parte C>a/f%, iRose, 138.
 
 300 
 
 OF THE PROOF Or DEBTS. 
 
 [Chap. 9. 
 
 Friendlij 
 society. 
 
 OptM-ation 
 of act con- 
 fined to 
 money 
 due from 
 ojjiccrs of 
 the so- 
 ciety, bi/ 
 ■virtue of 
 their office. 
 
 bankrupt, or insolvent, his executors or administrators, or 
 assignees, shall within forty days after demand made by 
 the order of the society, deliver over all things belonging 
 to such society, to such person as the society shall ap- 
 point ; and shall pay out of the assets all sums remaining 
 due, which such person received by virtue of his said officei 
 before any of his debts are paid or satisfied. ,(r>aii - . 
 
 In the first cases that were determined under this act, 
 its provisions were construed to extend to all persons, who 
 had the property of the society in their hands, although 
 they were not officers of the society ( 1 ) ; but, upon a revi- 
 sion of those cases, such a construction was found to be too 
 large, and the statute was afterwards confined to cases where 
 persons were duly and formally appointed officers of the 
 society — and was therefore held not to extend to a person, 
 to whom the money of the society has been paid as a 
 banker, or to whom money has been lent by them upon 
 security paying interest. (2) And even money lent to a 
 treasurer duly appointed, upon his promissory note, has 
 been held to be not within the operation of the act; for 
 the preference is given by the statute, in respect of money 
 which gets into the hands of the officers of the society, 
 only by virtue of their office, and independently of con- 
 tract. (3) 
 
 But in a case where money was paid to trustees, as 
 TUUSTEEs, and they gave separate notes for it, and volun- 
 tarily agreed to pay interest, for the purpose of serving the 
 society, — it was held, that here, the money being paid to 
 them as trustees duly appointed, their agreeing to pay in- 
 terest did not alter the case, so as to make the money in their 
 hands to be considered only a loan to them in their private 
 character ; and the claim under the statute was allowed. (4) 
 
 (1) lC.B.L.255. 
 
 (2) Ex parte Askimth, 1 C. B. L. 
 '255. Ex parte Amicable Societr/ 
 of Lancaster, 6 Ves. 98. Ex parte 
 Ashley, \b\A. 441. Ex parte Cor- 
 ser,i\iiA. Ex parte Ross, ibid. 804. 
 
 (.3) Ex parte Stamford Friendly 
 Society, 15 Ves. 280. Ex parte 
 Buckland, Buck. 214. 
 
 (4) Ex parte Friendly Society of 
 Wickwar, Whitmarsh, 297.
 
 Sect. 24.] OF THE PROOF or DEBTS. 301 
 
 Section XXIV. 
 
 Rates and Taxes. 
 
 If the bankrupt's estate is in arrear for rates or taxes, Where 
 
 the collector, or assessor, seems to be the proper person to f^llt^'tor, 
 
 or tisscssor 
 prove the debt; and he ought at the time of proof to pro- may prove! 
 
 duce his appointment, that the commissioners may judge of 
 
 the legality of it. (1) 
 
 But, if the collector himself should become bankrupt. Where 
 
 havinor received the taxes from the inhabitants, but not ^^'\'^^*^°'' 
 1--1I pj-11'- bankrupt, 
 
 havmg paid the money over, one of the mhabitants m that then one 
 
 case may be admitted to prove for himself and the rest (2); P^/^!"^ '"" 
 and the form of his deposition should be, that neither he, 
 nor the rest of the parishioners to his knowledge or belief, 
 have received any security or satisfaction. It makes no 
 difference, with respect to the right to prove against such 
 collector, that the usual time of accounting has not arrived — 
 as in the case of an overseer, who becomes bankrupt be- 
 fore the expiration of his year of office, before which he 
 cannot strictly by law be compelled to account ; — for the 
 money in his hands is a dehitum in pnesenti, though he 
 may only be accountable for it in futuro. (3) Where the 
 bankrupt had been appointed a joint collector with another 
 person, such person (though his co-collector) was per- 
 mitted to prove for the sum due on the part of the 
 parish. (4) 
 
 ( 1) lAoyd V. Heathcote, 2 B. & B. 508. contra, Rex v. Egginton, 1 T. 
 388. 1 C. B. L. 127. 1 Mont. Dig. R. 369. 
 
 143. (4) Ex parte Muggcridge, 1 C. 
 
 (2) Ex parte Child, 1 Atk. 111. B. L. 128. Ex parte Exlei^h, 6 Ves, 
 
 (3) Rex V. Tticker, 5 M. & S. 811.
 
 302 
 
 or THE PEOOr OF DEBTS. 
 
 [Chap. 9. 
 
 Section XXV. 
 
 Illegal and void Debts. 
 
 What 
 debts not 
 illegal. 
 
 Debts 
 
 tainted 
 
 withwiwry. 
 
 No debt, which is either illegal in its nature — as a bond 
 given for the jn'emhttn pudoris ; or which is made void by 
 statute — as a debt upon an usurious contract, — can be 
 proved under a commission. 
 
 Where a bond, however, was given by a bankrupt for 
 the payment of a sum of money, in consideration that the 
 obligee would marry a servant of the bankrupt, and main- 
 tain a bastard which the bankrupt had by her, and the 
 marriage took effect, — this was held to be a good con- 
 sideration, and the obligee entitled to prove the bond. (1) 
 So, where promissory notes were given for liquidated 
 damages in compromising an action for the seduction of 
 the plaintiff's daughter, pej- quod servitium amisit, the notes 
 were permitted to be proved under a commission against 
 the maker. (2) 
 
 Where a contract is originally usurious^ it is (with only 
 one exception) void ah initio^ and cannot be proved by any 
 person claiming benefit under it, notwithstanding he may 
 be neither party, nor privy, to the usury. (3) The ex- 
 ception alluded to is one created by a recent statute (4), 
 by which it is declared, that no bill or note, though given 
 for an usurious consideration, shall be void in the hands of 
 an indorsee for valuable consideration, without notice of 
 the usury. The rule of the Court of Chancery is, when a 
 bill is filed to be relieved against a demand of usurious 
 interest, not to make void the whole debt, but merely the 
 excess of interest, and to compel the party to pay what is 
 really due ; but under a commission of Bankruptcy, the 
 
 (1) Ex parte Cottrell, 2 Camp. 
 742. 
 
 (2) Ex parte Miimford, 1 5 Ves. 
 
 289. 
 
 (.3) Lowe V. Waller, Doug. 736. 
 (4) 58 G. 3. C. 93.
 
 Sect. 2.1] OF THE PROOF OF DEBTS. 303 
 
 assignees have a right to insist, that the whole is void upon Illegal 
 the ground of usury. And, unless the assignees and cre- 
 
 ditors submit to the proof of what is really due, the Lord 
 Chancellor has not power to order it. (1) Where a cre- 
 ditor also, who had taken out execution, delivered up the 
 proceeds to the assignees, under an express agreement that 
 he should come in with the other creditors for the balance 
 due to him, — it was held, that such agreement meant a 
 proveable balance, and did not let in the debt, if affected by 
 usury. (2) 
 
 In some cases, however, where by the custom of trade a Where 
 small per centage more than the legal interest is taken, in J^■ tirade T 
 the nature of commission.^ on the discounting of bills, and as reasonable 
 
 a reasonable compensation bond fide for extra trouble, — comnm- 
 
 1^ ^ "^ ' sion taken, 
 
 such a transaction is not considered to be usurious (3) ; not usury, 
 and 10s. per cent, has been held to be not unreasonable in 
 this respect. But commission cannot be added to the 
 amount of legal interest, for the purpose of inducing a loan 
 of money to be made, and of recompensing it afterwards 
 when made; for it must be always considered as an excess 
 beyond legal interest, unless it can be ascribable to trouble 
 and expense bond Jide incurred ; therefore, where there is 
 no such trouble or expense, the remuneration cannot 
 legally be claimed. The cases, where such commission can 
 be claimed, are chiefly confined to the dealings of bankers, 
 brokers, and other agents ; for any charge above the legal 
 interest by a general trader, and on one single transaction, 
 or by persons who cannot be considered in a mercantile 
 character, would be held a mere shift or cloak for 
 usury. (4-) 
 
 (l) Ex parte Thompson, 1 Atk. 2T. R. 52. n. Carstairs v. Stein, 
 
 125. Ex parte Skip, 2Ves.489. 4M.&S. 192. 
 
 Banjleld v. Solomons, 9 Ves. 84. (4) Kent v. Loiven, 1 Camp. 178. 
 
 (.2) Ex parte Banglay, 1 Rose, Auriol v. Mills, 2T. R. 52. Ha- 
 
 168. mersley v. Yea, 1 B. & P. 151. 
 
 (5) Ex parte Jones, 17 Ves. 332. Mastennan v. Coiuic, 5 Camp. 488. 
 
 1 Rose, 29. Ex parte Henson, Bayiiesv. Fry,\5Ves.\20. Marsh 
 
 1 Mad. 112. Winch, q. t. v. Fenn, v. Martindale, 3 B. & P. 1 54.
 
 304 
 
 Illegal 
 debts. 
 
 Where 
 money not 
 all ad- 
 vanced on 
 the day 
 from 
 which in- 
 terest to 
 be paid, 
 usurious. 
 
 How 
 Bank- 
 ruptcy 
 differs 
 from other 
 proceed- 
 ings, in 
 charging 
 usury. 
 
 OF THE PROOF OF DEBTS. 
 
 [Cliap. 9. 
 
 Debt from 
 sale of 
 goods to 
 be illegally 
 exported, 
 not prove- 
 able. 
 
 Where a warrant of attorney was given to secure the 
 repayment of 600/., with interest from a certain day, and 
 the whole of the money was not actually advanced on that 
 day, — it was held, that the transaction was usurious. (1) 
 But an agreement that money borrowed should be repaid 
 to the lender, or left in his hands as a banker, to be drawn 
 out as the borrower wanted it, — then, though the money 
 not being ready at the time when it is applied for by the 
 borrower, would be a breach of the contract, — yet it would 
 not amount to usury. (2) 
 
 In making out a charge of usury to defeat a debt /« 
 BanJcniptcy, it seems that, by the practice of the Court, 
 there is a much greater latitude allowed to the party 
 making such charge, than what is permitted in courts 
 either of law, or equity. For, at law, the charge must be 
 supported by strict rules of evidence ; and, in equity, the 
 debtor must either prove the usury by legal evidence, or 
 have the confession of the party — and, moreover, cannot 
 apply for relief, without offering to pay what is really due. 
 But in Bankruptcy, it is sufficient to suggest usury in a 
 petition supported by affidavits, merely upon information 
 and belief, by which the party charged is in fact compelled to 
 prove against himself; and this proceeding, also, is not for 
 the purpose of giving him his real debt, but with the ob- 
 ject of cutting him off from all relief. (3) This practice, 
 which has been more than once forcibly commented upon 
 by Lord Eldon, and which is certainly unreasonable in 
 principle, and frequently oppressive in its effects, does not, 
 however, appear yet to have received any alteration. 
 
 A debt arising from the sale of goods, bought for the 
 purpose of being sent to India, contrary to the prohibition 
 of an act of parliament, cannot be proved, if the party at 
 the time of the sale knew of their illegal destination. (4) 
 
 
 (1) Ex parte Banglay, 1 Rose, 
 168. 
 
 (2) Per Lord Eldon, ibid. 
 
 (3) Ex parte Scrivetier, 3 V. & 
 B. 14. 
 
 (4) Ex parte Moggridge, 1 C B. 
 L. 187. ; and see ex parte Daniel, 
 l4Ves. 191.
 
 Sect. 25.] OF THE PROOF OF DEBTS. 305 
 
 So, money advanced, for the furtherance and in execution Illegal 
 of any illegal contract, cannot be proved ; — as, where one ^ 
 
 member of a firm was connected with the bankrupt in 
 an insurance partnership (which until lately was illegal (1)), 
 and advanced the money of the firm to the bankrupt on dif- 
 ferent policies of insurance, and the partner so advancing 
 the money died, — it was held, that the surviving partner 
 of the firm could not prove the amount of such advances 
 under the commission. (2) 
 
 If the consideration, for which a security is given, be If part of 
 good in part, and bad in part, — though the security is void ^P"*'^^''^" 
 at law, yet in equity, and in proceedings in bankruptcy, it and part 
 
 shall stand as to what is good. As, where a broker was -' ^ ^^' 
 
 . curity may 
 
 employed to effect two insurances — one of which was be proved 
 
 illegal — and the principal, in consideration of the money ~ 
 
 1-1 iiii-rt>- ■ 1 amount or 
 
 laid out by the broker in effecting them, indorsed a bill to what is 
 
 him, which was accepted by a third person, who became a S^^d. 
 bankrupt; — the Lord Chancellor, though he refused to 
 allow the broker to prove against the estate of the ac- 
 ceptor such part of the debt, as arose upon the illegal in- 
 surance, held nevertheless that he might prove for the 
 residue. (3) And, where promissory notes were given by 
 a stock-broker for the balance of an account of money 
 advanced to him, to be employed in bargains for stock 
 contrary to the statute of the 7 Geo. 2. c. 8. — and the broker 
 became bankrupt, — upon a petition by the payee to prove 
 the notes under the commission. Lord Erskine allowed 
 proof to be made for sums admitted by the bankrupt to 
 have been received and applied to his own use — but for 
 no part of the amount, that appeared to be made up of 
 the profits arising from the stock-jobbing transactions. (4) 
 It is, however, purely a legal question, whether trans- Whether 
 
 actions of this nature are, or are not, an infringement of ^" ^?^ °' 
 
 ° parliament 
 
 (1) See 5G. 4. c. 114., by which (4) Ex parte Buhner, 13 Ves. 
 such partnerships are now made o\o.; awA see Grey \. Fowler, lH. 
 legal. B. 462. Petrie v. Hanvxiy, 5 T. 
 
 (2) Exparte JSe//, 1M.&S.751. R.418. 
 
 (3) Ex parte Mather, 3 Yes. 57 3. 
 
 X
 
 306 OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Illegal the act of parliament; and upon a petition to expunge the 
 
 debts. proof of a debt, wliich was composed of various sums of 
 
 isinfring- money paid by a broker for a bankrupt, in settling differ- 
 
 ^^' ^l'"^ r ences upon bargains of this description, Lord Eldon said, 
 question of . , , • r i j • • c . r 
 
 law. It ought to be put m a course tor the decision oi a court or 
 
 law. (1) 
 Where a A broker of the city of London, though he gives a bond 
 
 broker ^|^^|. j^^ ^yjj| j^^j. ^-j^^^j ^j^ j-jjg ^^j^ account, may nevertheless 
 dealing on _ _ . 
 
 his own prove a debt arising out of transactions as a merchant, not- 
 
 account, withstanding such dealings are in contravention of the rules 
 
 renders y ^ . 
 
 the debt and stipulations, under which he derives his office; for such 
 
 illegal, I'ules are not founded on any prohibition of general law, 
 
 but are only a matter of mere municipal regulation. If, 
 
 however, the debt arises out of one transaction, in which 
 
 he acted both as broker and principal, it is then void upon 
 
 principles of common law. (2) 
 
 Contract A debt, arising out of a contract to convey British goods to a 
 
 to convey ji^arket in an enemy's country, cannot be proved under a com- 
 
 an enemy's Juissiou, notwithstanding peace has even been subsequently 
 
 country, established between that country and Great Britain. (3) 
 
 °' ' Though, if the contract had taken place before the war, 
 
 it would then revive upon the restoration of peace between 
 
 the two countries, — the claim of the creditor being, in this 
 
 case, only suspended by the war. (4) But, in the case of an 
 
 INSURANCE of foreign property, followed by a war with 
 
 the country of the assured, a loss incurred by the hostile 
 
 act of this country cannot (as we have already seen (5) ) be 
 
 recovered upon the return of peace. 
 
 Inade- Inadequacy of consideration is also an objection, which 
 
 quate cbn- j^j^y be made to the proof of a debt under a commission, — 
 
 as in the case (which has been before put) in treating of the 
 
 Voluntary p^-Qof of annuities. (6) But a voluntary bond may be 
 
 (1) Ex parte Daniels, 14Ves. 71.; post 308, but see 2 Christ. 
 191. B. L. 287. 
 
 (2) ExparteZh/s<<7r, 2Rose,245. (5) Ante, 264. 
 (3)Ex parte &/iW«/i?ig, Buck.93. (6) Ante, 2,'>0. Ex parte Cafor, 
 f 4'^ Ex narte Boiissmaker. 13 Ves. 1 Bro, 287. 
 
 (4) Ex parte Boiissmaker, 13 Ves. 1 Bro, 287.
 
 Sect. 26.] OF THE PROOF OF DEBTS. 307 
 
 proved, so that payment of it be postponed until all the 
 other debts are satisfied ; after which it may be paid out of 
 the surplus, (l) And a bond, given for the arrears of a 
 voluntary bond, is deemed a bond for valuable consideration ; 
 and may be, therefore, proved without this restriction. (2) 
 
 may claim. 
 
 Section XXVI. 
 Of claiming a Debt. 
 
 If a creditor cannot ascertain his debt with certainty, Where a 
 sufficient to enable him to swear to the amount — or where ^'■^'"'^p'". 
 it appears to the commissioners that there is a probable 
 foundation of a demand, though not satisfactorily sub- 
 stantiated — it is usual to suffer a claim of the creditor 
 to be entered on the proceedings. (3) The benefit of this 
 proceeding is, that when a dividend is declared, he has one 
 also reserved upon his claim ; and as soon as his debt is 
 ascertained and proved, he is then entitled to receive the 
 dividend, without being obliged to apply to the Lord Chan- 
 cellor for that purpose. (4) 
 
 The claiming a debt is often necessary, where there 
 have been extensive dealings between the creditor and the 
 bankrupt as merchants, and no balance has been struck 
 upon the account current between them at the time of the 
 bankruptcy (5) ; or where the agent of a creditor, applying 
 to prove on his behalf, cannot at the time produce his 
 authority. It is, also, expressly provided for by the new 
 statute (6), in the case of an obligee in any bottomry, or re~ 
 spondentia, bond ; and also in that of the assured under a 
 policy of insurance, before the loss or contingency shall 
 have happened. 
 
 (1) Gardner's Assignees v. Skin- (5) Ex parte Simpson, 1 Atk. 70. ; 
 ner, 2 Sch. & Lef. 228. and see .5 Wils. 271. 
 
 (2) Gil/ham V. Loc/c, 9 Yes. 612. (6) Section 53.; and see ante, 
 (o) 1 C.B.L. 255. 264. 
 (4) Cull. B.L. 160. 
 
 X 2
 
 308 
 
 OF THE PROOF OF DEBTS. 
 
 [Ch. 9. 
 
 Of claims. 
 
 When 
 claim may 
 be struck 
 out. 
 
 Where an 
 alien ene- 
 my may 
 claim. 
 
 How claim 
 operates, 
 as notice 
 of dissent 
 from an 
 illegal con- 
 tract. 
 
 If the claim, however, is not substantiated in a reason- 
 able time, the commissioners may strike it out ; and they 
 generally do so before a dividend is declared, unless 
 sufficient reason is offered to them for its remaining longer 
 on the proceedings ; but the creditor is, notwithstanding 
 its erasure, at liberty to prove his debt afterwards, and to 
 receive his share upon any future dividends. And when 
 there have not been gross laches on the part of the cre- 
 ditor, the Lord Chancellor will generally make an order, 
 that the creditor shall be paid his proportion of the former 
 dividend out of what money may be in the hands of the 
 assignees, — so, however, as not to break in upon the rights 
 of the rest of the creditors as to such former dividend. 
 
 Where a debt was due to an alien enemy from the bank- 
 rupt, upon a contract before the isoar took place. Lord 
 Erskine ordered a claim to be entered, and the dividend 
 reserved, — holding it contrary to justice to confiscate the 
 dividend in such a case ; for that as the contract was 
 originally good, the right to recover it was only sus- 
 pended by the war, and would revive upon the restoration 
 of peace. (1) 
 
 A claim to prove a premium on an illegal insurance, or 
 wager, made with a bankrupt, has been held to be a 
 sufficient notice on the part of the claimant, that his 
 intention is to rescind the contract. Therefore, wherg 
 after such a claim was made, the commission was super- 
 seded, — the party was held entitled to recover back the 
 premium, in an action for money had and received against 
 the bankrupt — on the principle, that a person declaring his 
 dissent from an illegal wager, before the event happens, 
 may recover back the money he has paid. (2) 
 
 (1) Ex parte Boussmaker, ISVes. (2) Busk v. Walsh, 4 Taunt. 290. 
 
 71.
 
 Sect. 27.] OF THE PROOF OF DEBTS. 309 
 
 Section XXVII. 
 Of expunging and reducing a Proof. 
 
 Before the new statute, the commissioners, after once ad- 
 mitting a proof, could not expunge it without an order of 
 the Lord Chancellor. (1) But now, by the 60th section The com- 
 
 it is provided, that whenever it shall appear to the assignees, ™'^^*°"^''^ 
 tr ^ r r » ' may now 
 
 or to two or more creditors, (who have each proved debts expunge, 
 to the amount of 20Z. or upwards) that any debt proved is "'" ^^""'^^' 
 not justly due, either ni whole or m part, — such assignees 
 or creditors may make representation thereof to the com- 
 missioners, who may thereupon summon before them and 
 examine upon oath any person who shall have so proved, 
 together with any other person, whose evidence may appear 
 to the commissioners to be material, either in support of, 
 or in opposition to, any such debt. And if the com- 
 missioners, upon the evidence given on both sides — or 
 upon the evidence adduced by such assignees or creditors 
 alone (if the person who shall have so proved shall not at- 
 tend to be examined, having been first duly summoned, or 
 notice having been left at his last place of abode) — shall be 
 of opinion, that such debt is not due, either wholly or in 
 part, the commissioners are then empowered to expunge the 
 same, either wholly or in part, from the face of the pro- 
 ceedings. The assignees or creditors, however, who require 
 suth investigation, must, before it is instituted, sign an 
 undertaking (to be filed with the proceedings) to pay such 
 costs, as the commissioners shall adjudge to the creditor 
 who has proved such debt ; which may be recovered after- 
 wards upon petition to the Lord Chancellor. 
 
 But this new power given to the commissioners, it is 
 declared by the same section, is not to prevent the assignees 
 or creditors from applying in the first instance, if they 
 choose, by petition to the Lord Chancellor ; nor is either 
 
 (l) Ex parte Nixon, Mont. B, L. App.34. Ex parte Graham^ iRose, 
 
 4.56. 
 
 X 3
 
 310 OF THE PROOF OF DEBTS. [Ch. 9. 
 
 Expung- party, in fact, restricted from petitioning against the deter- 
 % ng proof . j^jpaj-JQjj of t[,g commissioners. 
 
 When If the creditor has received a dividend upon the proof, 
 
 creditor ^y}^i(.j^ jg ordered to be expunged, or reduced, he will upon 
 refund di- petition to the Chancellor be ordered to refund such divi- 
 vidend. clend, either in all, or in part, as the case may be. (1) 
 When a With respect to those cases where a proof will be 
 
 proof may ordered to be expunged, or reduced, — it may be sufficient 
 punged. to observe, that where the circumstances are such as would 
 prevent a creditor from proving (if he had not proved 
 already), they wiil equally authorize the expunging, or re- 
 duction, of the proof. As, where a creditor proves a debt, 
 excepting certain bills of exchange which he holds as a 
 security, — if any of such bills are afterwards duly honoured, 
 or in any wayfidli/ satisfied, the amount must be deducted 
 from the proof, and the dividends made only upon the 
 residue of the debt. (2) 
 
 Where a creditor took out a commission, and then relin- 
 quished it upon obtaining security for his debt, and under 
 a second conmnssion which was afterwards issued, proved 
 the debt, and was also chosen an assignee, — his proof in this 
 case was ordered to be expunged (3), and a new choice of 
 assignees directed. And where a creditor had prevailed 
 on the bankrupt to give him a bond for more than was 
 due, and had proved it under the commission, — this proof 
 was likewise ordered to be expunged. (4) 
 Where If the indorsee of a bill of exchange, who proves it 
 
 discharges ""^^e^' ^ commission against the indorser, afterwards re- 
 acceptor ceives a composition from the acceptor in discharge of the 
 wit lout ^.jj^ without the consent of the assignees — as the indorsee 
 
 assignees by SO doing discharges the indorser — the assignees have 
 of in- 
 
 (1) Ex parte Smith, 1 C. B. L. Crosdey,\\nd. Ex parte Barratt, 
 124. Ex parte Browne, UVes. iG & J. 527. 
 
 472. Ex \mxtc Burn, 2 Rose, 55. (5) Ex parte Paxton, 15 Ves. 
 
 Ex parte Hunter, 5 Mad. 165. 461. 
 
 (2) Ibid. Ex parte ^/o.c/ia»i, ibid. (4) Ex parte Brown, 15 Ves. 
 Ex parte Wallace, ibid. Ex parte 472.
 
 Sect. 27.] OF THE PROOF OF DEBTS. 311 
 
 also, in such a case, a right to insist that the proof of the Expung- 
 debt shall be expunged. (1) This is upon the ground, " '° ^' "^ ' 
 that a discharge of the principal debtor, without the con- 
 sent of the surety, discharges the surety. 
 
 But the discharge of a surety by the creditor has not, as Where a 
 
 we have seen (2), the effect of discharging the principal; ^^[^^y 
 
 v. ^5 _ » o t t ' only dis- 
 
 nor does it operate as a discharge of the co-surety. There- charged, 
 fore, where a promissory note made by a principal and 
 three sureties was proved by the holder, under different 
 commissions against two of the sureties and the principal — 
 and the holder afterwards received a composition of 4s. in 
 the pound from the third surety, — it was held, under these 
 circumstances, that the proof against the estate of one of 
 the other sureties should not be expunged. (3) 
 
 Where the creditor, whose debt is sought to be expunged. Service of 
 is abroad, or lives remote, an order will be made (on expunce 
 motion) that service of the petition on his attorney (4-), or where cre- 
 on the agent to whom the affidavit of debt was sent, shall abroad 
 be deemed good service. (5) 
 
 (!■) Ex parte Smith, 3 Brown, 1. (5) Ex parte Gifford, 6 Ves. 805. 
 1 C.B. L. 155 (4) Ex parte Palon, 5 Mad. 116. 
 
 (2) Ante, 288. (5) Ex paite jDu?ilop, ibid. 279. 
 
 X 4
 
 313 
 
 CHAP. X. 
 
 OF THE ASSIGNEES. 
 
 1. Of a Provisional Assignee. 
 
 2. Of the Choice of Assignees. 
 
 3. Of the Interest they take hy the Assignment. 
 
 4. Of the Nature of their Trust ; and herein 
 
 1 . Of their general Authority, Duty, and Liability. 
 
 2. Of their Duty, more especially, in collecting and 
 disposing of the Ba?ikrupt^s Property. 
 
 5. When Assignees become Bankrupt. 
 
 6. Of the removal of Assignees, 
 
 Section I. 
 Of a Provisional Assignee, 
 
 Jjy section 45 of the new statute, the commissioners may^ 
 if they think fit, immediately upon declaring the party 
 bankrupt, and before any meeting for the choice of assignees, 
 appoint one or more person or persons to be a provisional 
 assignee or assignees, either of the whole, or of any part, 
 of the bankrupt's real and personal estate. The provisional 
 assignee is removeable at the meeting of the creditors for 
 the choice of the regular assignees — and must then, under 
 the penalty of 200/., deliver up and assign all the estate of 
 the bankrupt in his possession to the assignees so chosen 
 by the creditors — who will thereupon become as effectually 
 and legally entitled to it, as if the first assignment had 
 been made to them by the commissioners. 
 Object of This power is given to the commissioners, merely for the 
 the ap- better securing of the bankrupt's property, and is not often
 
 Sect. 2.] OF THE ASSIGNEES. 313 
 
 exercised ; for, in ordinary cases, it creates expense without Provisional 
 answering any good end. But where the bankrupt is '^ ^"S^^^- 
 indebted to the Crown, and an extent is apprehended to 
 issue against his property, a provisional assignment is then 
 of essential benefit; for an extent binds the property of 
 tlie bankrupt, if issued before an actual assignment (1) 
 made by the commissioners. If, however, there is no Costs, 
 necessity of this kind for a provisional assignment, the ex- 
 pense of it will not be allowed on the taxation of the peti- 
 tioning creditor's bill of costs. (2) 
 
 When a provisional assignment is made, the bankrupt's Copyholds 
 copyhold property (3) (if he has any) should be excepted should be 
 out of it, with a view of saving the expense of two fines to 
 the loi'd upon surrender and admittance. For an extent 
 does not affect copyhold property ; and, therefore, the 
 creditors will run no risk in this respect with regard to the 
 claims of the Crown. (4) 
 
 Section II. 
 Of the Choice of Assignees. 
 
 By the 61 5^ section of the new act, the assignees are Must be 
 
 directed to be chosen (5) at the second of the three public chosen at 
 
 , „ , . , . , , . , . .the second 
 
 meetmgs, (or which notice has been previously given \n meetin'^ 
 
 the Gazette in the manner stated in a former chapter (6) ) 
 
 (1) Queen v. Arnold, 7Vin. 104. one, contained any directions token 
 Rex V. Cotton, 2 Ves. 289. Eex v. they were to be chosen, though 
 Mann, 2 Str. 749. the usual practice was to elect 
 
 (2) Ex parte M'WUliams, 1 Mad. them at the second meeting. For 
 141. the progress of the law upon this 
 
 (3) See Section 64. subject, see 1 Christ. 255. 277. 
 
 (4) Drurj/ V. Mann, 1 Atk. 95. (6) Ante, 141.; and see Section 
 
 (5) The '5 Ann. c. 22. s. 4. was 25. The meeting of creditors for 
 the first act, that introduced the the choice of assignees (as well, 
 provision respecting the choice of indeed, as all the other public 
 the assignees by the creditors; meetings appointed by the com- 
 but no statute before the present missioners, where the commission
 
 314 
 
 OP THE ASSIGNEES. 
 
 [Ch. ICF. 
 
 Choice. 
 
 by what 
 creditors. 
 
 Commis- 
 sioners 
 have 
 power to 
 
 reject. 
 
 Three 
 commis- 
 sioners 
 must be 
 present. 
 
 Election 
 must not 
 be post- 
 poned 
 without 
 substantial 
 reason. 
 
 or at some adjournment of such meeting. And all cre- 
 ditors who have proved debts under the commission to the 
 amount of 10/. and upwards, are entitled to vote in such 
 choice, as well as any 'person duly authorized hy letter of 
 attorney [1] from any such creditor; the execution of which 
 must be proved, either by affidavit sworn before a Master 
 in Chancery, or by oath before the commissioners viva voce ; 
 — and in case the creditor resides out of England, by oath 
 before a magistrate where the party shall be residing, duly 
 attested by a notary public, British minister, or consul. 
 The choice is to be made by the major part in value of the 
 creditors so entitled to vote. But the commissioners have 
 power to reject any person so chosen, who shall appear to 
 them unfit to be such assignee ; and, upon such rejection, 
 a new choice of another assignee must be made in his 
 room. (2) 
 
 Three commissioners should be jiresent when the choice 
 takes place ; otherwise the election becomes invalid, and 
 will, be set aside, notwithstanding the assignment is after the 
 election duly executed by three commissioners. (3) 
 
 The choice of assignees is not to be postponed, because 
 certain creditors, whose accounts are in an unravelled state, 
 are not prepared to establish their proofs ; for the pro- 
 ceedings under the commission must not on this ground 
 
 is executed in London) is now held 
 at the Court of Commissioners of 
 Bankrupts, lately erected in Ba- 
 singhali Street, in the city of Lon- 
 don, and established under the 
 1 &2G. 4. c. 115. 
 
 (1) The right to vote under a 
 power of attorney, was by the 
 former law confined to creditors 
 living remote from the place of 
 meeting, and was not even ex- 
 tended to the case of a creditor 
 prevented by illness from attend- 
 ing. (Ex parte Garland, 2 Rose, 
 351.) One partner, it has been 
 decided, may execute such a power 
 
 of attorney for himself and his co- 
 partners. Per Lord Eldon, ex parte 
 Hodgkinson, 2 Rose, 174. 
 
 (2) This power of rejection was 
 before the new statute vested only 
 in the Lord Chancellor. (Ex parte 
 Shaw, 1 G. & J. 127.) The com- 
 missioners, however, had power to 
 adjourn the choice of assignees 
 from the day publicly appointed 
 for that purpose, although all the 
 creditors present concurred in the 
 election. Ex parte Garland, 2 Rose, 
 561. 
 
 (.3) Ex parte Moore, 1 G. & J. 
 190.
 
 Sect. 2.] OF THE ASSIGNEES. 315 
 
 be impeded ; and, in general, the choice of assignees ought Choice. 
 to proceed, however few the creditors may be who have 
 made immediate proof. (1) The commissioners also ought 
 not to adjourn the meeting for the purpose merely of investi- 
 gating a claim, which is not sufficient to turn the choice ; 
 and where they did so upon one occasion of this kind, 
 the}' were ordered, on petition, to execute the assignment 
 forthwith to the persons who had been elected assignees ; 
 for the choice of the creditors must be rendered effective 
 by the immediate execution of the assignment, the better 
 to enable the persons chosen to act for the benefit of the 
 estate. (2) The choice, indeed, should never be postponed 
 without a good and sufficient reason, — but should be pro- 
 ceeded with to the best of the judgment of the commis- 
 sioners, unless a petition against it has been previously 
 presented. (3) If the commissioners, however, are satisfied When to 
 that a petition for superseding the commission will be pre- . ^ '"^'"j 
 sented, with the co7ise?it of all the creditors who have proved under the 
 debts, they are, in that case, directed by a general order (4) S^"^""'^! 
 to adjourn the choice to some future day, in order to give 
 the opportunity for presenting such petition. 
 
 The qualifications required to be elected an assignee are Qualifica- 
 merely, the integrity of the party, and his sufficient ability *'°rj °' 
 to be responsible for the sums he may receive from the 
 bankrupt's estate. It is not necessary^ that he should be a 
 creditor oi the bankrupt (5), though it is usual to elect a 
 creditor to the office. And, although a creditor, who is a 
 party to a deed of assignment of the bankrupt's effects 
 previous to the commission, is prevented from being peti- 
 tioning creditor, and setting up that deed as an act of 
 bankruptcy, he is nevertheless eligible as an assignee, under 
 a commission sued out upon it by another person. (6) 
 
 (1) Ex parte Butterfll, 1 Rose, (4) 21st August 1818. Buck. 281. 
 196. (5) Ex parte Greqiiier, 1 Atk. 90. 
 
 (2) Ex parte Woolley, 1 G. & J. In re Litchfield, ibid. 86. 
 
 366. (6) JacJcson V. Irving, 2 Camp. 
 
 (3) Ex parte Barclay, 1 G. & J. 48. 
 280.
 
 316 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Choice, 
 
 As to cre- 
 ditor elect- 
 ing him- 
 self as- 
 signee. 
 
 Bankrupt 
 cannot be 
 assignee of 
 his own 
 estate. 
 
 When 
 creditors 
 tn ay prove, 
 in order to 
 vote. 
 
 One creditor, if his debt be sufficiently large, may elect 
 himself assignee of the bankrupt's estate, within the mean- 
 ing of the statute, which directs that the choice shall be 
 made by the major part in value of the creditors. And the 
 proof of such a creditor is not to be rejected, because he 
 has interests or claims inimical to the general creditors, 
 and may, by virtue of such proof, elect himself to be as- 
 signee. But if a person of the latter description do elect 
 himself — as the Lord Chancellor would, upon an immediate 
 application, remove him — (1) the commissioners may now 
 also, under such circumstances, equally reject him. In some 
 cases of this kind, where a length of time has been suffered 
 to elapse before the application for the removal — or where 
 transactions of importance have taken place under the 
 commission, which may be affected by removing such an 
 assignee, — the Lord Chancellor has appointed another per- 
 son to be a co-assignee, or as agent, or inspector, solely for 
 the purpose of investigating and contesting the claims of 
 the assignee so self-elected. (2) In one case, indeed, be- 
 fore Lord Hardwicke, where an assignee died, leaving the 
 bankrupt his sole representative, who thereupon chose 
 himself (the debt being sufficiently large) to be assignee of 
 his own estate, — it was held, that such choice was valid. (3) 
 But in a late case, where the majority of the creditors 
 chose the bankrupt to be assignee, Lord Eldon held, that 
 whether a bankrupt was certificated, or not, there was too 
 much inconvenience in it, to permit him to be assignee of 
 his own estate. (1) 
 
 If a creditor will make oath of a certain sum being due to 
 him — as his account may be afterwards fully investigated — 
 he ought to be permitted to prove to that amount, for the 
 purpose of choosing assignees, unless there appear to the 
 commissioners to be any reasonable objection to the fairness 
 
 (1) Ex parte Martell, 1 Rose, Ex parte Miles, 2 Rose, 68. 5V. 
 528. & B. 139. 
 
 (2) Ibid. Ex parte De Tastet, (s) Cooperh case. Green, 260. 
 ibid. 524. 1 Ves. & B. 280.; and (4) Ex parte JacJcson, 2 Rose, 
 see ex parte JBazarro, 1 Rose, 266. 221 .
 
 Sect. 2.] OF THE ASSIGNEES. 317 
 
 of the debt, — in which case they should only suffer him to Choice. 
 claim, till he makes out his demand to their satisfaction. (1) 
 And a creditor, holding a security for part of his debt, 
 may, if he is desirous of voting in the choice of assignees, 
 petition to have a value put upon the security, and prove 
 for the difference before the security is sold. (2) But an 
 application of this nature will depend upon its special cir- 
 cumstances, — of which the general benefit of the creditors, 
 and the amount of the applicant's debt, are two of the most 
 material. (3) 
 
 A Corporation vote in the choice of assignees, by a spe- Corpor- 
 cial power of attorney under their common seal. (4) ation. 
 
 A Beceiver appointed by the Court of Chancery to prove a receiver 
 
 and receive dividends does not, in consequence of that ap- ^?^, "o 
 , r ... , . „ right to 
 
 pomtment, possess the power oi votmg m the choice or vote. 
 
 assignees (5); for the order admitting him to prove is not 
 declaratory of an anterior right, but originates his title ; 
 and if the order does not pronounce that he had an ante- 
 cedent right to prove, he cannot have any right to vote. (6) 
 
 The choice of assignees is subject to the most unqualified Grounds 
 
 control of the Lord Chancellor (7), and he will always o*'applica- 
 
 , • , 1 1 1 • i tion tor 
 
 dn-ect a new choice, when they have been improperly anew 
 
 elected. But it is not a sufficient ground to apply for a choice, 
 new choice, merely because creditors were abroad, or were 
 prevented by accident from voting, or have given a de- 
 fective power of attorney to another person to vote. (8) 
 For if that practice were to prevail, the choice might be 
 postponed to a great length of time, which would be incon- 
 sistent with the general provisions of the Bankrupt laws. (9) 
 But if creditors are kept back by fraud, then the Court 
 will attend to such an application. (10) Nor is it a suf- 
 
 (1) Ex parte Simpson, 1 Atk. 70. (5) Ex parte Shaw, 1 G.&J. 151. 
 
 (2) Ex parte iV?<K?j, lRose,522.; (6) Ibid. 165. 
 and see ex parte De Tastet, ibid. (7) 12 Ves. 12. 
 
 324. (8) Ex parte Shaw, 1 G.&J. 129. 
 
 (3) Ex parte Smith, 2 Rose, 63. (9) Ex parte Grequier, 1 Atk. 90. 
 1 Ves. & B.518. (10) Ex parte Surtees, 12 Ves. 
 
 (4) Ex parte Ba7ik of England, 10, 
 1 Swanst. 10. 1 Wils. Ch. Rep. 295.
 
 318 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Choice. 
 
 Where 
 one of 
 several as- 
 signees re- 
 jected, 
 choice set 
 aside al- 
 together. 
 
 Whether 
 bankrupt 
 may can- 
 vass for 
 particular 
 assignees. 
 
 ficient ground to apply for a new choice, that two or three 
 creditors were excluded by the judgment of the commis- 
 sioners, who, if they had been allowed to prove their debts, 
 might have turned the choice; unless, indeed, they were 
 excluded by some improper conduct or fraud practised 
 upon the (1) commissioners. But, where the commissioners 
 improperly rejected the proof of a debt to a very large 
 amount, whereby two creditors for comparatively trifling 
 sums were enabled to choose the assignees, a new choice 
 was directed, upon condition that the petitioner indemni- 
 fied the estate against all the costs. (2) And where, 
 through the error of the commissioners, the great body of 
 the creditors is excluded, — the Lord Chancellor, in this 
 case, will permit them to have the opportunity of voting, 
 and will direct a new (3) choice. Such an application, 
 however, should be made as soon as possible after the re- 
 jection of the proofs ; for the Court will not interfere, where 
 the applicant has been guilty of delay. (4) 
 
 Where, upon a choice of three persons to act jointly as 
 assignees, the Court rejects the nomination of one of them, 
 it will set aside the choice altogether ; as it cannot be col- 
 lected, from such joint nomination of the three, whether 
 it was the intention of the creditors to entrust the ad- 
 ministration of the bankrupt's affairs to txsoo only of the 
 three (5), if one should be rejected. But in another case, 
 where one of three assignees refused to act, and the estate 
 would have derived no advantage from the choice of 
 another in his room, the Vice-Chancellor did not think a 
 new choice to be necessary. (6) 
 
 In the case of Ex parte Shaxv, the right of the bankrupt 
 to canvass among the creditors for particular assignees was 
 much discussed ; and the Vice-Chancellor was of opinion, 
 that the choice should, on that ground alone, be set aside. 
 
 (1) Es. parte Durent, Buck. 201. 
 Ex parte Malhieson, ibid. 202. 
 ("note.) Ex parte Hawkins, Buck. 
 
 520. 
 
 (2) Ex parte Edwards, Buck. 
 411. 
 
 fs) Ex parte Hawkins, supra. 
 
 (4) Ex parte Scholci/, 1 G. & J. 2. 
 
 (5) Ex parte Slmw, 1 G.& J. 1 55. 
 
 (6) E-a. p&vic Kirsley, Buck. 477.
 
 Sect. 2.] OF THE ASSIGNEES. 319 
 
 The Lord Chancellor, upon appeal, did not go into this Choice. 
 question, but avoided the election on different grounds; 
 observing, however, that there was great difficulty in de- 
 termining, what degree of interposition on the part of the 
 bankrupt would render the choice null and void ; for that, 
 in some cases, the advice and solicitation of the bankrupt 
 might not be (1) improper. 
 
 Joint creditors are, by the 62d section of the new act. Joint cre- 
 
 entitled to prove under a separate commission, for the ""^o''s "'^3 
 
 prove 
 purpose of voting in the choice of assignees, and of as- under a 
 
 senting to, or dissenting from, the certificate. (2) But separate 
 
 . ... . connnis- 
 
 there is no provision enabling separate creditors to prove gion for 
 
 for this purpose under a joint commission. The law as to the pur- 
 them, tlierefore, stands as it was before, — which prevents votin'^. 
 them from voting in die choice of assignees under a joint 
 commission. (3) Upon some occasions, indeed, if the in- 
 terest of the separate creditors require it, an order will be 
 made, that an inspector shall be appointed for the separate 
 estates, as a check upon the proceedings of the assignees. (4) 
 
 As soon as the assignees are finally appointed, a proper Assign- 
 
 assiirnment should be executed to them by the commis- "V^"*, ■ . 
 
 , ^ , . should be 
 
 sioners of all the bankrupt's estate and effects (5), which entered of 
 
 should be entered of record at the bankrupt office, as well ""ecord. 
 as the commission and the adjudication of bankruptcy, pur- 
 suant to the requisitions of the 96th section of the statute; 
 otherwise, none of these documents are now receivable in 
 evidence in any court of law or equity. 
 
 (1) iG. &J. 152. (5) Ex parte Pan; 18 Ves. 65' 
 
 (2) Before the new statute they 1 Rose, 76. Ex parte Hamer, ibid, 
 were not so entitled, (Ex parte 521. Ex parte JiT/woj, 1 9 Ves. 224. 
 Simp&on, 2 Rose, 538.) unless there (4) Ex parte Batson, 1 G. & J. 
 were no separate creditors qua- 269. 
 
 lifted to vote. Ex parte Jones, (5) For the Form see Vol. II. 
 18 Ves. 285. Ex parte Taylor, ibid. 
 284. Ex parte Lai/cock, 1 Rose,52.
 
 320 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Section III. 
 
 Of the Interest 'which Assignees take wider the Assignment. 
 
 Assignees 
 have no 
 interest 
 before as- 
 signment. 
 
 Not bound 
 to take 
 property 
 of doubt- 
 ful value. 
 
 Trust pro- 
 perty does 
 not pass. 
 
 The assignees (when duly chosen, and an assignment is 
 made to them by the commissioners) stand in the same 
 situation, both with respect to legal and equitable interests, 
 as the bankrupt himself; and are entitled absolutely to all 
 property of whatever description, which the bankrupt was 
 entitled to for his own benefit, either in possession, re- 
 version, remainder, or expectancy, (l) But the bankrupt is 
 not actually divested of his property, neither does any pro- 
 perty whatever pass to the assignees, before the assignment is 
 actually executed to them by the (2) commissioners. Nor 
 does any property, the value of which is of a doubtful 
 nature, and in regard to which it is uncertain, whether it 
 will be a profit or a burthelti to the estate, absolutely vest in 
 the assignees, before they have done some act to manifest 
 their acceptance (3) of it. For they are not bound to take 
 all the property of the bankrupt — but only such as they 
 may consider w ill prove beneficial to the creditors, — having 
 power to reject all that may be included under, what Lord 
 Kenyan termed, a damnosa hoereditas. (4) They have an 
 election, therefore, whether they will take such property, or 
 not; but they must make their election promptly; and 
 when they have once elected, they cannot afterwards re- 
 nounce the property. (5) 
 
 But TRUST property of no description passes in any way 
 to the assignees, if it can be distinguished from the general 
 
 (1) Tyrrell v. Hope, 2 Atk. 562. 
 Bushworthv. Hodson, 2 Show. 103. 
 Pope V. Onslow, 2 Vern. 286. An- 
 derson v. Mottley, 2 Ves. 255. Ex 
 parte Herbert, 13 Ves. 188. 
 
 (2) 2 Co. Rep. 26 a. Warner v. 
 Barber, 2 Moore, 71.8 Taunt. 1 76. 
 
 (5) Copeland v. Stephens, 1 B. & 
 
 A. 593.; and see post, " Assign- 
 ment of Personal Property," and 
 " Leases." 
 
 (4) Bourdillon v. Dalton, 1 Esp. 
 235. Peake, 258. Brome v. Ro- 
 binson, cit. 7 East, 529. 
 
 (5) Per Lord Ellenborough, 1 B. 
 & A. 507. Hanson v Stevenson.
 
 Sect. 3.] OF THE ASSIGNEES. 321 
 
 mass of the bankrupt's property. And where, under Of their 
 special circumstances, a bankrupt would be considered as I. 
 
 trustee for another, his assignees will be considered in that 
 light also. ( 1 ) For though a Court of Equity will favor the 
 general creditors of a bankrupt as much as it can, yet it 
 must be only where they have a superior right to other 
 persons. (2) The assignees are, therefore, bound by all acts Bound by 
 fairly done by the bankrupt, and are also subject to the Lyiti^^ 
 same equity, to which he himself was subject. Thus, the bank- 
 wher€ the bankrupt's wife is entitled to trust property, the '^"P** 
 assignees cannot obtain it in a Court of Equity, without 
 making a pi'oper provision for the wife. (3) So, where the 
 bankrupt before his bankruptcy paid a promissory note to 
 a creditor for a valuable consideration, but omitted to in- 
 dorse it, and the assignees afterwards obtained the amount 
 from the drawer, they were considered as trustees (4) for 
 the holder of the note. In cases of this kind, indeed, the 
 bankrupt himself has been holden not incompetent to in- 
 dorse the note, after the issuing of the commission (5) ; 
 and the assignees have also, upon petition, been ordered to 
 indorse a bill (6) under similar circumstances. 
 
 The assignees can also only take such property, as the Can only 
 bankrupt is conscientiously entitled to. Therefore, where i^anj^rupt 
 a trader fraudulently procured good bills in exchange for conscien- 
 a bill which he knew to be forged, and his assignees re- '-[igj jq"" 
 ceived the amount of the good bills when they became due ; 
 it was held, that the person from whom the good bills were 
 so obtained, might recover the money from the assignees, 
 in an action for money (7) had and received. But in a case of 
 the sale of goods, it was held, that though the bankrupt /«- 
 tended even to defraud the seller, yet that an actual delivery 
 of them to the bankrupt, before his bankruptcy, vested them 
 
 (1) Tyrrel v. Hope, 2 Atk. 558. (5) Smith v. Pickering, Esp. 30. 
 
 {2) Brown V. Jones, \ k\k.\QO. Peake, 50. Ex parte Greening, 
 
 (.5) Parker v. Dykes, Davies B. IsVes. 206. 
 
 L. 281.; and see post, " Effect of (6) Ex parte Mowhray, 1 Jac. & 
 
 the Assignment on the Estate of W. 428. 
 
 the Wife." (7) Harrison v. Walker, Peake, 
 
 (4) Ex parte Byas, 1 Atk. 124. 111.
 
 3^2 
 
 OF THE ASSIGNEES. 
 
 [Ch. lo: 
 
 Interest, in his assignees. ( I ) With respect to the Bpecific appropri- 
 ation, or substitution, of one bill of exchange to answer 
 another when it becomes due, — the assignees have been 
 ordered to apply the proceeds of such substituted bill, to 
 answer the bill dishonored by the bankrupt. (2) Where, 
 however, an action was brought against them to recover 
 the proceeds of a bill so specifically appropriated, it was 
 held necessary to prove, that the produce of the bill came 
 into the hands of the assignees, with a knowledge on their 
 part of the purposes for which the bill was destined. (3) 
 
 The nature of the interest taken by the assignees will be 
 more fully explained in the next chapter, and subsequent 
 parts of this work, under the following heads : viz. " Of the 
 Effect of the Assignment;" " Of Actions and Suits by and 
 against the Assignees ;" and " The Relation to the Act of 
 Bankruptcy." 
 
 Bound to 
 
 satisfy 
 them- 
 selves of 
 the vali- 
 dity of 
 commis- 
 sion. 
 
 Section IV. 
 Of the Nature of their Trust, 
 
 1 . Of their general Authority, Duty, and Liability. 
 
 2. Of their Duty, more especially, in collecting and disposing 
 
 of the Bankrupt's Property. 
 
 1. Of their general Authority, Duty, and Liability. 
 
 The nature of the trust of the assignees depends, both 
 upon the statute, and upon their general legal character as 
 trustees. Their authority is founded upon the commission, 
 and the assignment from the commissioners; and their 
 first duty, both as regards their own responsibility and the 
 interest of the creditors, is to satisfy themselves that the 
 commission is well founded. (4) For if the commission be 
 invalid, the assignment also becomes of no effect; and if 
 the commission be superseded, the assignees are liable to the 
 
 (1) 4Esp. 171. 
 
 (2) Ex parte Pt-j/row, 2Rose,56(). 
 
 (.5 ) Kieran v. Johnson, 1 Star. 109. 
 (4) Ex parte Graves, l G.&J. 86.
 
 Sect. 4.] OF THE ASSIGNEES. 323 
 
 bankrupt in respect of the property they have disposed of Authority. 
 
 under it. An assignee, indeed, if he chooses to act, is bound „ T7~ 
 
 . . . . But if they 
 
 to consider the commission (under which he derives his ap- act, must 
 
 pointment) as a valid commission, otherwise he ought to re- consider it 
 move himself from the situation of assignee ; — for the Lord 
 Chancellor has no power to indemnify him against the con- 
 sequences of his acting, nor to prevent any future liability 
 attaching to him in the character of assignee. ( 1 ) And where, 
 in an action directed to be brought against an assignee, for 
 the purpose of trying his right to retain certain goods, it 
 became a question, whether the assignee was bound to 
 admit the validity of the commission upon the trial, — 
 Lord Eldon said, that if the assignee elected to dispute it, 
 he must do so at the expense of his proof. (2) 
 
 By section 77. of the new statute, all powers vested in All powers 
 
 the bankrupt, which he might legally execute for his own y^sted in 
 
 1 />,,., P . . 1 bankrupt, 
 beneiit, (except the right oi nommation to any vacant eccle- may be 
 
 siastical benefice) may be executed by the assignees for the executed 
 
 benefit of the creditors, in the same manner as the bank- nees. 
 
 rupt might have executed them. 
 
 The authority of the assignees is limited to the purposes Authority 
 
 of their trust, namely, the distribution of the estate under limited to 
 
 1 • • rr.| 1 1 r piU-pOSeS 
 
 the commission. 1 hey have no power, thereiore, to enter of trust, 
 into an agreement to dispose of the surplus of the bankrupt's 
 effects, after paying 10^. in the pound to the creditors. (3) 
 
 By section 88. the assignees (with the consent of the As to 
 major part in value of creditors who have proved debts P°^^^ 
 under the commission, present at any meeting, whereof pound, 
 and of the purport whereof twenty-one days' notice shall y ^^ 
 have been given in the Gazette) may compound with any arbitra- 
 debtor to the bankrupt's estate, and take any reasonable *'°"J 
 part of the debt in discharge of the whole — or may give 
 time or take security for the payment of such debt — or may 
 submit any dispute concerning the bankrupt's estate to the 
 determination of arbitrators, to be chosen by the assignees 
 
 (1) In the matter o{ Bryant, (2) Ex parte JacA-5, 1 Rose, 395, 
 
 2 Rose, 1 7. (5) Ex parte Barfit, 12 Ves. 1 5. 
 
 Y 2
 
 324 
 
 OF THE ASSIGNEES. 
 
 CCh. 10. 
 
 Authority. 
 
 and to 
 commence 
 suits in 
 equity. 
 
 Calling 
 meetings. 
 
 As to re- 
 ferring to 
 arbitra- 
 tion. 
 
 Operation 
 of release 
 by one as- 
 signee. 
 
 Whether 
 a receipt 
 of one as- 
 signee 
 binds the 
 other. 
 
 and the major part in value of the creflitors, and by the 
 party with whom they shall have such dispute. The award 
 of the arbitrators in such case is declai-ed to be binding 
 upon all the creditors, and the assignees will be indemnified 
 for what they shall do according to such directions. No 
 suit in equity can be commenced by the assignees, without 
 such consent of the creditors as above mentioned. (1) But 
 if one-third in Afalue or upwards of such creditors shall not 
 attend such meeting, the assignees have power then, with 
 the consent of the commissioners in writing, to do any of 
 the matters aforesaid. 
 
 The assignees, however, may call any other meeting, 
 upon any extraordinary occasion that concerns the cre- 
 ditors ; and when they do so, they will act rightly in adver- 
 tising such meeting, pursuant to the directions of the above 
 section. (2) 
 
 In referring disputes to arbitration, the assignees (for 
 their own security) should be careful to protest against the 
 reference being taken, as an admission of assets ; — for if 
 they refer generally, without a protest of this kind, it will 
 amount to such an admission — and will, consequently, ren- 
 der them personally liable to pay the sum awarded, in case 
 of a deficiency of the bankrupt's assets ; for there is no 
 distinction, in this respect, between assignees, and executors 
 or administrators. (3) 
 
 One assignee cannot, by giving the other assignees a 
 general authority to act for him, enable them to execute a 
 release by deed, for which purpose there must be a special 
 authority under seal: but a release, executed by one as- 
 signee in \he jjre&ence of the other, binds both, (■i) 
 
 The receiyt, however, of one only of several assignees, 
 Lord Hardwicke held, was not an absolute discharge to the 
 debtor, — making a distinction in this case between as- 
 signees and executors; for, he said, though a payment to one 
 
 (1) Ard see post, " Of Suits at 
 Law and in Equity, by and against 
 the Assignees." 
 
 (2) Ex parte Proudfoot, 1 Atk. 
 2.51. Ex parte Cnfer, 1 Bro. 267. 
 
 (5) Robson V. 
 
 -, 2 Rose, 50. 
 
 (4) Williams v. Waloby, 4 Esp. 
 220. ; and see Lord Lovelace's 
 case, W.Jones, 268. Bell v. Du7i- 
 derville.
 
 Sect. 4.] OF THE ASSIGNEES. 325 
 
 executor is good, because each has a power over the whole Authoriti/. 
 
 estate of the testator, and each is considered as a distinct 
 
 person ; yet, that this was not the case with assignees of a 
 
 bankrupt, who are in the nature of trustees. (1) But it 
 
 has been decided by Lord Kenyon at fiisi prius, that a 
 
 bona Jide payment to one assignee would be good, and 
 
 that his receipt would bind the estate (2); unless, indeed, 
 
 his co-assignee expressed his dissent; — for, without that 
 
 exception, one assignee might be enabled to dissipate and 
 
 destroy the estate in despite of his brother trustee. 
 
 Assignees will not be permitted to charge the estate No right to 
 
 for business done by themselves as accountants, though ^"^''g^/or 
 
 •' , _ . travelling 
 
 they carry on that particular business for their own live- expences, 
 
 lihood. (3) Nor, though it may be sometimes proper for 
 
 the creditors to make such an allowance, have they any 
 
 right to charge for their travelling expences. (4) 
 
 Assignees under a separate commission against one of As to en- 
 two partners, cannot in tjeneral en£iaa;e in new adventures S^S'"g '" 
 with the solvent partner ; though they may do so with the ventures, 
 consent of the creditors of the bankrupt. (5) 
 
 The assignees are entitled to the custody of the proceed- As to gus- 
 
 ings under the commission, and have a ri^ht to nominate ^"^^ of the 
 
 ... . proceed- 
 
 the solicitor, with whom they shall be deposited. (6) They ings, and 
 
 are, in fact, responsible for the safe custody of the proceed- "omma- 
 
 c . , , . 1 * 1- . .,, , tion of the 
 
 ings ; ror neither the assignees, nor the solicitor, will be solicitor. 
 
 permitted to say, that they are in any person's hands but 
 
 their own. (7) The solicitor, however, may be changed by 
 
 the majority of the assignees, and the commission and 
 
 proceedings will be in that ease ordered to be delivered up 
 
 to the new solicitor; — but the dissenting assignee has a 
 
 right to know, whether such change will be beneficial. (8) 
 
 (1) Canny. Reed, sAtk. 695. (5) Crawshay v. Collins, 15Ves. 
 
 (2) Smith V. Jamieson, 1 Esp. 228. 
 
 114, Bristow v. Eastman, ibid. (6) Ex parte jScar/A, 15 Ves.293. 
 
 I<72. Ex parte Watson, 1 C. B. L. 105. 
 
 (3) Ex parte Read, 1 G. & J. 77. (7) Ex parte Btdlen, 1 Rose, 134. 
 
 (4) Per Lord Eldon, ex parte (8) E^ parte Scrubi/, 1 Rose, 207. 
 Brai/, I Roue, 145. Ex parte Tomlinson, 2 Rose, 66.; 
 
 and see post, " Solicitor." 
 
 Y S
 
 326 OF THE ASSIGNEES. [Ch. 10. 
 
 Duty and If an assignee employs an agent in the conduct and ma- 
 h ahihty. nagement of the bankrupt's property, who misapplies and 
 When li- embezzles any part of the effects, — the assignee will be 
 
 able for liable to make it ffood, unless he had consulted the body 
 the acts of f i • • • 
 
 an agent, of the creditors (who are his cestui que trusts) in the appoint- 
 ment of such agent. (1) But when the assignees employ a 
 person, either from necessity, or conformably to the general 
 usage of mankind, they are not then liable for losses, or 
 for the default of such agent. Thus, where an assignee em- 
 ployed a broker to sell a quantity of tobacco, and the broker 
 received the money, and in ten days failed, without having 
 paid it over, the assignee in this case was held not bound 
 to make it good. (2) 
 Only an- Assignees are, like other trustees, only answerable indi- 
 
 swerable vidually for what each actually receives ; and the miscon- 
 
 for their , X • -n • i • • 
 
 own acts, duct oi one assignee will not operate against his innocent 
 
 co-assignee (3) ; notwithstanding in the assignment they 
 
 covenant jointly and severally with the (4) commissioners. 
 
 As to keep- There are various provisions in the new statute, as to the 
 
 ing and keeping and the auditing of the accounts of the assignees. 
 
 auditing' r a o c? 
 
 accounts. Thus, by section 101. (5), they are directed to keep 
 an account of all property of the bankrupt received by 
 them, and all payments made by them on account of the 
 bankrupt's estate; which account every creditor, who has 
 proved a debt under the commission, may inspect at all 
 seasonable times. And, by a general order of Lord Lough- 
 borough (6), the assignees under a joint commission are 
 required to keep distinct accounts of the joint and separate 
 estates. By section 106., also, of the new act, the commis- 
 sioners are directed, at the meeting for the bankrupt's last 
 examination, to appoint a public meeting, not sooner than 
 four calendar months fiom the issuing of the commission, 
 nor later than six calendar months from the bankrupt's 
 
 (1) In the Matter of Earl of 98. In the Matter of Earl of 
 
 Litchfield, 1 Atk. 87. Litclifield, supra. 
 
 {'■A) Ex parte Belchier, Ambl. (4) l Atk. 90. 
 218.; and see ex parte Wilkinson, (5) Taken from 5 G. 2. c. 30. 
 
 Buck. 197. and post, 539. s. 26. 
 
 (3) Primrose v. Bromley, I Atk. («) 8th March 1794.
 
 Sect. 4.] OF THE ASSIGNEES. 327 
 
 last examination, (whereof twenty- one days' notice must be Duty and 
 given in the Gazette) to audit the accounts of the assignees, ^' 
 
 who must then deUver upon oath a true statement in 
 writing of all money received by them respectively, and 
 when and on what account, and how the same has been 
 employed. And the commissioners are required to exa- 
 mine such statement, and compare the receipts with the 
 payments, and ascertain what balances have been from 
 time to time in the hands of the assignees respectively, and 
 enquire whether any sum ought to be retained by them. 
 In this inquiry, the commissioners may examine the as- 
 signees upon oath ; who are to be allowed to retain all such 
 money, as they shall have expended in suing out and pro- 
 secuting the commission, and other just allowances. The 
 assignees, also, by section 101., may be summoned by the May be 
 commissioners at any time to produce all books and docu- jo"!^'^"'^^ 
 ments relating to the bankruptcy ; and in case of default, duce 
 their attendance may be enforced by warrant ; — and upon "°^'^^» *^'^- 
 refusal to produce them, the commissioners may commit 
 the assignee refusing to prison, until he shall submit him- 
 self to the commissioners. 
 Besides the above provisions as to the authority of the Can be 
 
 commissioners over the assignees, the latter can be com- ^o^P^l'^d 
 
 ^ ' . to account, 
 
 pelled also to account for what they have received by hype- 
 petition (1) (not by hill [2) ) of the bankrupt, or of any of ^*^'""' 
 the creditors. But a previous application should ba made for 
 this purpose to the commissioners ; and if they miscarry in 
 their judgment, or refuse to act, then the creditors, or the 
 bankrupt, may petition the Court to have the accounts 
 taken. (3) 
 
 When an assignee dies before he has accounted for the When as- 
 
 . J. 
 
 bankrupt's estate received by him, and leaves no personal ^'|j^^g ^^^ 
 assets, the commissioners will be considered as specialty counting, 
 creditors ; — for the assignee having executed to them a 
 counterpart of the assignment under hand and seal, his 
 covenant to account with them for monies received is in 
 
 (1) Per Lord Eldon, Buck. 92. (s) Ex parte JBrocksopp, Buck. 
 
 (2) Saxton V. Davis, 18 Ves. 80. 304. 
 
 Y 4-
 
 S2S 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Duty and 
 liability. 
 
 Bound by 
 contract of 
 bankrupt. 
 
 When li- 
 able for 
 goods 
 ordered by 
 bankrupt. 
 
 For costs 
 and wit- 
 ness's ex- 
 penses. 
 
 the nature of a specialty debt, and they may consequently 
 come upon his real estate. (1) 
 
 The assignees are bound to fulfil a contract made by a 
 bankrupt before his bankruptcy, part of which has already 
 been performed by him. Therefore, where a bankrupt 
 had contracted to purchase a quantity of wool, on an 
 agreement that a deposit of 5 per cent, was to be made 
 on the amount of the purchase money, and that the re- 
 mainder was to be paid when he took away the wool; 
 and after the deposit was made, and the bankrupt had 
 taken away part of the wool and paid for it, the price fell 
 in the market ; and the assignees contended that the seller 
 could have no further claim after the forfeiture of the 
 deposit, — the Vice-Chancellor held, that (the bankrupt 
 having taken away part of the goods) the assignees were 
 bound in the terms of the contract to take away the re- 
 mainder ; and he ordered the residue of the wool to be 
 sold, and that the vendor might prove for the difference 
 between the amount of the proceeds, and the price which 
 the bankrupt had agreed to give for it. (2) 
 
 Where the assignees authorize the bankrupt, as their 
 agent, to carry on the business for the benefit of the cre- 
 ditors, and the bankrupt orders goods which are used in 
 the business, — the assignees are liable to an action for the 
 price of them, though they are ordered by the bankrupt in 
 his own name. (3) 
 
 Assignees are liable to pay the costs of the trial of an 
 issue directed to try the validity of the commission, when 
 the verdict is found against them ; but they will not be 
 made to pay the costs of a petition to supersede (4) the 
 commission. They are also liable to an action for the 
 travelling expenses of a witness, after allowance by the 
 commissioners; though the witness be also a creditor of 
 the bankrupt. (5) 
 
 {\)Frimrose\. Bromley, \ktV..9,S. (o) Kinder v. Howarth, 2 Star. 
 Wacl:erbath v, Powell, Buck. 495. 554. 
 
 (2) Ex parte Gou/cr, sittings after (4) Ex parte Edwards, Buck. 
 Trinity term 1826, cor. Vice- 
 Chancellor. 
 
 232. 
 
 (5) Yarker v. BotJiam, 1 Esp. 64.
 
 Sect. 4.] OF THE ASSIGNEES. 329 
 
 It is no defence to an action by a solicitor against an as- Butp and 
 signee, for business done as solicitor to the commission, that ' " ' ' ^' 
 the commission was sued out under a misrepresentation of When 
 the solicitor, — such as that the commission would be oper- ^^^ [P 
 ative in the Isle of Man, where it turned out to be wholly citor and 
 fruitless; — for the commission cannot, while it exists, be ™^ssenger. 
 considered as a mere nullity; and the only remedy of the • 
 assignee, in such a case, is to have recourse to a cross action 
 against the solicitor. ( 1 ) And though a commission be su- 
 perseded for fraud, to which the assignees are in no way 
 privy — and, though they have not, in fact, received any 
 effects under the commission, — they are, nevertheless, 
 liable to pay the messenger his costs of the several sum- 
 monses and proceedings subsequent to the choice of as- 
 signees. (2) Even after a final dividend is made, they are 
 still liable to the messenger for his fees and expenses; for 
 they are presumed to know his claim upon them, and ought 
 to reserve sufficient (3) to satisfy it. Assignees, also, may 
 make themselves liable to the solicitor under the commis- 
 sion, beyond what a Master in Chancery will allow on 
 taxation ; though they cannot charge the estate with any 
 tees, or costs, which have not been so allowed, (■i) 
 
 The assignees are bound to contribute respectively one Bound to 
 to another, for their several proportions of losses, or ex- contnbute 
 penses, occasioned by their joint acts. Thus, where a loss penses of 
 to the bankrupt's estate was brought about by the joint act joint acts, 
 of three assignees, and an order was made upon the three 
 to make good the loss, and one only paid the whole 
 amount, — upon a bill filed by him against the other two, 
 (although it appeared that they had acted under his repre- 
 sentation and advice) contribution was nevertheless en- 
 forced against them with costs. (5) So, where two of 
 three assignees became bankrupt, the solvent assignee, who 
 had paid a debt due from the three to the estate, was held 
 
 (1) Pa«?Horev. ^»toV, 2Star.59. (4) Finchett v. How, 2 Camp. 
 
 (2) Ex paite Hartop, 9 Ves. 109. 278. 
 
 12Ves. 349. (5) Lingard v. Bromley, 1 Ves. 
 
 (•5) Ibid. 1 Rose, 449. & B. 1 14.
 
 330 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Duty and 
 liability. 
 
 entitled to prove a third of such debt against each of 
 their estates. And, if either of the estates in such a case 
 had proved deficient, it seems, that he would not have 
 been restricted from proving a moiety of the deficiency 
 ao-ainst the estate of the other assignee, (i) Two of three 
 assignees, however, cannot bring b, joint action against the 
 third, for his share of the contribution towards any loss, 
 or payment (2) ; but each must bring a separate action. 
 And, in such an action, the plaintiff is not bound to show, 
 that any funds came into the defendant's hands from the 
 bankrupt's estate. (3) 
 
 For the duty of the assignees in the payment of di- 
 vidends, see post, title " Dividend." 
 
 Personally 
 liable for 
 wrongful 
 seizure of 
 property. 
 
 Liability 
 of joint 
 estate, 
 under a 
 separate 
 commis- 
 sion, for 
 expenses. 
 
 2. Of the Duty and Liability of the Assignees in collecting 
 and disposing of the Bankrupt's Property. 
 
 It is the duty of the assignees to collect in all the bank- 
 rupt's property, with as much expedition as the nature of 
 it will admit. They should be careful, however, not to 
 seize the property of other persons ; for they will become 
 then personally liable for any loss occasioned by such 
 seizure. Thus, in a case where assignees wrongfully took 
 possession of a farm (which did not belong to the bank- 
 rupt) and kept it for a long time, during which they had 
 mismanaged it, — the Lord Chancellor ordered, not only the 
 restitution of the property, or its value, but also that the 
 assignees should be personally liable, beyond the funds in 
 their hands, to make good the loss occasioned by such mis- 
 management; and his decision in this respect was after- 
 wards approved of by the Court of King's Bench. (4) 
 
 If assignees under a separate commission are put to any 
 expense in recovering joijit property, the separate estate is 
 entitled to be reimbursed out of the joint estate. (5) But 
 if, under a separate commission, joint creditors employ a 
 
 (1) Ex parte Hunter, Buck. 552. 
 
 (2) Brand v. Boulcot, 3 Bos. & 
 P. 235. 
 
 (3) Hart V. Biggs, 1 Holt^ 245. 
 
 (4) Ex parte Cowaw/sB. & A. 
 123. 
 
 (5) Ex parte Rutherford, 1 Rose, 
 201.
 
 Sect. 4.] OF THE ASSIGNEES. SSI- 
 
 person to collect in the joint property, without first ob- Duly in 
 
 laining the sanction of the Court, they who employ him ^" '''^ '?^ 
 
 must pay the expense, and not the joint estate. (1) 
 
 When the assignees have collected in the property, it is As to the 
 
 their duty then to sell it as soon as can be done with ad- ^^^^ of the 
 
 . property, 
 
 vantage; and if they neglect to dispose of it, the Lord 
 
 Chancellor upon the petition of a creditor will order a 
 sale, notwithstanding the assignees may be desirous of 
 keeping the estate unsold, conceiving it to be more bene- 
 ficial for the creditors ; for if such an order be pressed 
 for by any one creditor, Lord Loughborough said, the 
 Court could not refuse it. (2) And in one case, where 
 the assignees had permitted the bankrupt to continue 
 in possession of a farm for eighteen months, they were 
 ordered to sell it, and to pay the costs of the appli- 
 cation. (3) In all these cases, if any individual creditor 
 has called upon the assignees to sell property, which they 
 defer the sale of in the expectation of benefiting the estate, 
 it will be at their peril of answering any difference of price, 
 notwithstanding a considerable number of the creditors 
 approve of the sale being deferred. (4) 
 
 The assignees, being bound to exert themselves to make Not re- 
 
 the most of the bankrupt's property, are accustomed ^tnctedtt* 
 
 , , ,. . any par- 
 
 generally to put it up to sale at public auction. But ticular 
 
 though this is the general practice, they may sell it if they ™I^^'*^ °* 
 choose by private contract; and (with the consent of the 
 creditors) there would, indeed, be no objection to that 
 mode of sale. If, however, they adopt that method upon 
 their own responsibility, — and a complaint be made, that 
 the property by a different mode of disposal might have been 
 made more productive, — the Lord Chancellor will, upon a 
 proper case made out, direct an inquiry whether the pro- 
 perty could have been sold to any, and what, greater ad- 
 
 (1) Ex T^dxte Longman, 1 Rose, (5) Ex parte Por/cr, 4 Mont. B. 
 303. L. App. 31. 
 
 (2) Ex parte Goring, I Ves. jun. (4) Ibid. Ex parte Hughes, 
 168. 6 Ves. 617. Ex parte Kendal, 
 
 17 Ves. 514.
 
 332 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Duty in 
 
 collecting 
 
 property. 
 
 As to sale 
 before the 
 commis- 
 sioners. 
 
 When 
 biddings 
 may be 
 opened. 
 
 Sales free 
 from auc- 
 tion duty. 
 
 vantage. (1) But the Chancellor will not, in general, make 
 any order hoxio the bankrupt's estate shall be sold, but leave 
 that power to the commissioners, who may give directions 
 for selling it in the manner they may think most advan- 
 tageous. (2) Nor will an order be made to restrain the 
 assignees from selling in any particular mode; for they act 
 in this respect at their own risk, and upon their own 
 responsibility ; and they ought, therefore, to be the best 
 judges of the propriety and expediency of the mode of 
 sale. (3) 
 
 An estate of value is frequently sold before the commis- 
 sioners ; and this, perhaps, is the most effectual mode to 
 prevent all collusion between the assignees and any other 
 party. The advertisement for such a sale should not be 
 general, but should specify the period of time when the 
 sale is to take place, — as in the case of a sale before a 
 Master, where the advertisement states that the sale will 
 take place during a certain period, as between the hours 
 of ten and twelve. But if a better bidder offers after that 
 period is expired, and the commissioners are not gone, 
 they ought to admit him ; and if they refuse to do so, the 
 Lord Chancellor will, upon petition, open the bidding. (4) 
 Though biddings are not often opened by the Lord Chan- 
 cellor after a sale has actually taken place, yet, under 
 special circumstances, and upon an early application, such 
 an order will be made, if the justice of the case requires 
 it. (5) Lord Manners, however, refused such an application, 
 where the purchase deed had been executed, and the pur- 
 chaser put into possession. (6) 
 
 The sales of any real or personal estate of the bankrupt 
 are, by the 98/A section of the new statute, exempted 
 entirely from the auction duty. Where, however, the bank- 
 rupt has mortgaged any part of his estate — and the as- 
 
 (1 ) Ex parte Bunman, 2 Rose, GG. 
 
 (2) Ex parte Comings, 1 Ves. 
 112. 
 
 (3) Ex parte Montgomery, 1 G. 
 & J. 558. 
 
 (4) Ex parte Green, 1 Atk. 202. 
 
 (5) Ex parte Partington, 1 Ball 
 & B. 209. 1 Rose, 567. 
 
 (6) Ibid.
 
 Sect. 4.] OF THE AKSIGNEKS. 333 
 
 signees, instead of selling the equity of redemption, take -Dw'y in 
 upon themselves to sell the whole property absolutely as ^".pl^^^f 
 
 the estate of the bankrupt, — such a sale has been held by 
 
 the Court of Exchequer to be still liable to the auction 
 duty, on the ground, that the bankrupt had no interest in 
 the lands higher than an equity of redemption. And the 
 Court refused even to deduct the proportional part of the 
 duty, payable on the value of the equity of redemption, — con- 
 sidering that one entire duty was payable on the whole, and 
 that if the assignees chose to blend the interest so indis- 
 criminately, the Court was not bound to relieve them. (1) 
 
 Assignees are bound, like other persons, to make out a Assignees 
 good title to a purchaser, unless they guard themselves by °*j." *° 
 express stipulation (2); nor can they, without doing so, good title, 
 either compel the completion (3) of the purchase, (which 
 they may do in ordinary cases by petition (4') to the Lord 
 Chancellor) or retain the deposit upon the price of the 
 estate, which is contracted to be sold. (5) In a case, how- 
 ever, where assignees put up to sale the bankrupt's interest 
 in an estate under such title " as he lately held the same, 
 an abstract of which might be seen at the office of Messrs. 
 J. and Co.," — it was held, that the vendee could not, after 
 such a notification, insist upon any other title than such as 
 the bankrupt had (6) ; for a vendor, if he thinks fit, may 
 stipulate for the sale of an estate, with such title only as he 
 happens to possess. (7) 
 
 By the 78th section of the new act, the Lord Chancellor As to 
 
 may, on the petition of the assignees, or of any purchaser P''':"F"P* 
 *" r o ' .^ r ^ joining m 
 
 of the bankrupt's estate, order the bankrupt to join in any convey- 
 ance. 
 
 (1) Rex V. Abbott, 3 Pri. 178.; (6) Fre7iie v. Wright, 4 Mad. 
 and see ante, " Proof of Creditors 394. 
 
 by Mortgage." (7) Mr. Sugden observes upon 
 
 (2) M'Donaldv. Hanson, 12Ves. this case, that conditions like these 
 277.; and see White v. Foljambe, should be looked at with great 
 1 1 Ves. 343. Sugden, V. & P. 524. jealousy, as they are often traps for 
 
 (3) Orlebar v. Fletcher, 1 P. the unwary ; and the Court should 
 Wms. 737. at least expect the fact to be 
 
 (4) Ex parte Goidd, 1 G. & J. broadly stated, that the seller only 
 251. sells such title as he has, without 
 
 (5) Bartlett v. Tuchin, 1 Marsh, warranting the same. Sugd. V. & 
 583. P. 524.
 
 331 
 
 Duty in 
 
 collecting 
 
 property. 
 
 Must give 
 copies of 
 title deeds. 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10 
 
 Assignees 
 restricted 
 from pur- 
 chasing 
 bankrupt's 
 property. 
 
 1 
 
 conveyance; and by the Sith section, no title of any pur- 
 chaser can be impeached by the bankrupt, or any person 
 claiming under him, unless the bankrupt shall have applied 
 for a supersedeas within twelve calendar months from the 
 issuing of the commission. (1) 
 
 Where title deeds cannot be delivered, assignees must 
 also (like any other vendor) give attested copies of them at 
 the expense of the estate; but they are entitled to limit 
 their covenant, for the production of such deeds, to the time 
 of their continuance as assignees. (2) In the sale of lease- 
 hold property, they are not, as incidental to the contract, 
 entitled to a covenant from the purchaser to indenmify 
 them against the rents and covenants in the original lease ; 
 for, to enable them to insist upon such a covenant, there 
 must be an express stipulation to this effect in the agree- 
 ment for sale. (3) And, indeed, there does not seem to be 
 any necessity for a stipulation of this kind at all ;' for an 
 assignee of a lease, being only liable to the lessor by 
 reason of his privity of estate, is discharged from all fur- 
 ther liability as soon as he has effectually assigned the 
 term, and divested himself of all interest in the premises. 
 
 The assignees, in the disposal of the bankrupt's pro- 
 perty, are considered in their general character as trustees; 
 and, therefore, upon the general principle that a trustee 
 shall not purchase the estate of his cestid que trust, they are 
 held incapable of becoming purchasers themselves of any 
 part of the bankrupt's property, without the consent of 
 all the creditors. And the Lord Chancellor will, upon 
 general grounds of policy alone, and without regard to the 
 fair intentions of the parties, set aside every such sale, — and, 
 in general, make the assignees pay the whole expense (4) 
 incurred by such proceeding. If the assignee so pur- 
 
 (1) These sections are similar 
 (though somewhat altered) to the 
 provisions in the 3 G. 4. c. 8 1 . s. 4. 
 
 (2) Rx parte Stuart, 2 Rose,215. 
 
 (3) Wilkins\. Fry, 2 Rose, 371. 
 1 Meriv. 244. 
 
 (4) Whichcote v. Latvretice, 3 Ves. 
 
 740. Campbell v. Walker, 5 Ves. 
 678. Ex parte Hughes, 6 Ves. 617. 
 Ex parte Lacey, ibid. 625. Lister 
 V. Lister, ibid. 651. Ex parte Tan- 
 ner. Ex parte Atwood and Oiven 
 V. Foulkes, cit. 6 Ves. 630. Ex parte 
 Morgan, 1 2 Ves. 6.
 
 Sect. 4.] OF THE ASSIGNEES. 335 
 
 chasing should have re-sold the estate, and made a profit -0«(y in 
 of it, he will be ordered to account for such profit to the Z-onertv 
 
 creditors ( 1 ) ; and the very circumstance, of an assignee 
 
 having purchased part of the bankrupt's property, will be a 
 sufficient ground for removing him, as well as his co- 
 assignee who permitted the purchase. (2) If, however, in But held 
 
 investigating a transaction of this description, it should f° . 
 
 " ° . bargain, 
 
 turn out that the contract would be beneficial to the bank- when con- 
 
 rupt's estate — or where the future sale does not produce ^■^^!^\ h&ne- 
 more than what the assignee agreed to give tor it (3) — he the estate, 
 will then be held strictly to his bargain. And where an 
 assignee, without the authority of the creditors, bought in 
 the bankrupt's estate, which was put up to auction in two 
 lots — and upon a re-sale there was a loss upon one lot, and 
 a gain upon the other, though the whole balance was in 
 favour of the bankrupt's estate, — the assignee was held in 
 this case chargeable with the whole of the loss on the lot 
 undersold, without being permitted even to set off against it 
 the profit on the other lot. (4) Where notice, however, was 
 given of a reserved bidding at the sale by the assignee for 
 the benefit of the creditors, and several of the principal cre- 
 ditors present at the sale sanctioned such reserved bidding, 
 and afterwards expressed their approbation of the conduct 
 of the sale, — the assignee, under these circumstances, was 
 held not liable for the deficiency between the price that was 
 offered at the sale, and the sum for which the property was 
 afterwards actually sold. (5) 
 
 In like manner, if an assignee, instead of selling the Assignee 
 
 estate, should take a lease to himself, he is held answerable to f^""°' 
 ' ' ^ take a 
 
 the creditors for profit or loss. (6) And where an assignee lease to 
 was the landlord of certain premises, which had been let '"'"5^"» 
 to the bankrupt from year to year — and, without determin- 
 ing the tenancy by any notice to quit, the assignee got pos- 
 
 (1) Ex parte Reynolds^ 5 Yes. (4) Ex parte Leivii, I G.&J. 69. 
 707. (5) Ex parte Buxton, 1 G. & J. 
 
 (2) Ibid. 555. 
 
 (3) Ibid. (6) Ex parte Hughes, 6 Ves. 6 1 7.
 
 ^ 
 
 336 
 
 Duty in 
 
 collecting 
 
 property. 
 
 or pur- 
 chase di- 
 vidends. 
 
 Same dis- 
 ability at- 
 taches to 
 the com- 
 missioners, 
 and the 
 solicitor. 
 
 When 
 
 strictness 
 of the rule 
 relaxed. 
 
 OP THE ASSIGNEES. 
 
 [Ch. 10. 
 
 session of the house, and let it to a new yearly tenant, re- 
 ceiving a honus for such new demise, — Lord Eldon decided, 
 that he was not entitled to retain it ; for that an assignee, 
 under these circumstances, cannot resume possession and re- 
 let, unless for the benefit of the creditors of the bankrupt. (1) 
 So, if an assignee purchase dividends of the bankrupt's estate 
 from a creditor, and the purchase be beneficial, he is then 
 considered a trustee for the creditor, or the bankrupt, ac- 
 cording to the circumstances of the case. (2) And where an 
 assignee had purchased goods at a sale under thecommission, 
 and afterwards became bankrupt, it was ordered, that such of 
 the goods as remained in specie should be delivered up (3), 
 and that what he had re-sold should be proved as a debt. 
 
 The same disability, as to the purchase of any part of 
 the bankrupt's property, attaches likewise to the com- 
 missioners, and the solicitor under the commission — who, 
 by reason of the situation in which they respectively stand, 
 are subject to the same rule as the assignees are bound by 
 in this respect. (4) 
 
 The strictness of the rule has, however, in certain cases, 
 been relaxed by the Lord Chancellor ; but this has only 
 been done under very special circumstances, upon an ap- 
 plication made previous to the purchase, and with the con- 
 sent of the creditors obtained at a meeting called for that 
 express purpose. (5) In one case, where (from the situation 
 of the property) it was difficult to obtain a purchaser, and 
 the property had been valued by an indifferent person, and 
 the bankrupt consented to the purchase, — it seems, that an 
 assignee was allowed to purchase. (6) But though the 
 creditors, at a meeting convened by advertisement (7)> 
 
 (1) Ex parte Wright, 2 Rose, 
 244. 
 
 (2) Ex parte Lacy, 6 Ves. 625. 
 
 (3) Ex parte Spong, 1 Rose, 133. 
 
 (4) Owen v. Follces, 6 Ves. 639. 
 note (b). Ex parte .Tames, 8 Ves. 
 337. Ex parte Linwood. Ex parte 
 Churchill, cited ibid. 543. Ex parte 
 Bennet, 10 Ves. 381. 
 
 (5) Ex parte Hodgson, 1 G. & J. 
 12. Ex parte Page, 4 Mad. 459. 
 
 (6) Ex parte Maychell, Whitm. 
 B. L. ) 53. Sed quaere, whether 
 there must not have been also the 
 consent of the creditors, as well as 
 that of the bankrupt. 
 
 (7) Mr. Eden in his Treatise on 
 the Bankrupt Law (p. 205.) siig- 
 
 15
 
 Sect. 4.] 
 
 OF THE ASSIGNEES. 
 
 S37 
 
 sanction a sale of the bankrupt's effects at a valuation to 
 an assignee, the Court will not order that the assignee 
 shall be allowed to purchase, without a reference to the 
 commissioners, to ascertain whether the property can be 
 more advantageously disposed of. (I) Nor will such an 
 order be made, unless the other assignees, as well as the 
 bankrupt, are served with the petition. (2) 
 
 By the 102d section of the new act, the major part in 
 value of the creditors present at the choice of assignees, 
 may direct how and where the money received out of the 
 bankrupt's estate shall be paid in, and remain, until it be 
 divided ; and if they do not make such direction, then the 
 commissioners are empowered to make it. But no money 
 can be directed to be paid into the hands of any of the 
 commissioners, or of the solicitor to the commission, or 
 into any banking-house or other house of trade, in which 
 any such commissioner, assignee (3), or solicitor (4) is 
 interested. 
 
 Duty in 
 
 collecting 
 
 pro2)erti/. 
 
 How mo- 
 ney to be 
 lodged 
 until a 
 dividend. 
 
 gests a very reasonable doubt, how 
 far the consent of such a meeting 
 would be sufficiently indicative of 
 the consent of the creditors, (and 
 see Nias v. Adamson, 3 B. & A. 
 225.) for that few persons, in point 
 of fact, see the Gazette, and a meet- 
 ing of creditors is, in point of prac- 
 tice, but very thinly attended. The 
 power of creditors present at such 
 a meeting to bind those who are 
 absent, has been often indeed some- 
 what hastily presumed ; the new 
 statute gives it only in some pe- 
 culiar cases, such as to enable the 
 assignees to compound with cre- 
 ditors, submit to arbitration, com- 
 mence suits in equity, or accept a 
 composition contract from the 
 bankrupt or his friends. 
 
 (1) Ex parte Serle, 1 G, & J. 
 187. 
 
 (2) Ex parte Page, 4 Mad. 459. 
 
 (3) For want of this restriction, 
 much inconvenience and loss was 
 ibrmerlv occasioned to the cre- 
 
 ditors; See Ex parte .Ba/irer, IsVes. 
 246. 
 
 (4) This enactment, with the 
 exception of the prohibition con- 
 tained in the last part of it, is con- 
 formable to the 5 G. 2. c. 30. s. 32., 
 which contained a similar provi- 
 sion. But, notwithstanding the 
 directions of this last mentioned 
 act, it frequently happened that 
 large sums of money remained in 
 the hands of the assignees, who 
 delayed dividing the same amongst 
 the creditors, and often made use 
 of the money for their own pur- 
 poses. To remedy this evil in some 
 measure. Lord Loughborough, by a 
 general order 8th March 1794, 
 directed, that where the creditors 
 had not given directions where the 
 money was to be placed, the as- 
 signees should pay it into the Bank 
 of England, as often as it amounted 
 to 100/. Money, however, to a 
 large amount was still often re- 
 tained by the assignees, which oc-
 
 338 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Duty in 
 
 collecting 
 
 property. 
 
 May be 
 invested in 
 purchase 
 of exche- 
 quer bills. 
 
 Penalty on 
 assignee 
 retaining 
 money in 
 his hands. 
 
 By the following sectimi 103, the commissioners may 
 tlirect any money to be invested in the purchase of ex- 
 chequer bills, for the benefit of the creditors ; and may also 
 direct where and with whom such exchequer bills shall be 
 kept, and may cause the same to be sold, when it shall 
 seem to them expedient that the proceeds should be again 
 laid out in the purchase of others for the benefit of the 
 creditors; subject, however, in every case of this kind to 
 the control of the Lord Chancellor. 
 
 Audhy section lO^., if any assignee shall retain (1) in 
 his hands, or employ for his own benefit, or knowingly 
 permit his co-assignee to retain or employ, any sum to the 
 amount of 100/. of the bankrupt's effects ; or shall neglect 
 to invest money in the purchase of exchequer bills, when 
 directed as above mentioned; — such assignee will be liable 
 to be charged by the commissioners with interest, at the 
 rate of 20 j^er ccnt.^ on all such money for the time during 
 which he shall have retained or employed it, or permitted 
 the same to be done, — or during which he shall have 
 neglected to invest the money in the purchase of ex- 
 chequer bills. 
 
 This enactment will be construed strictly against the 
 assignees, as the act is imperative ; and great mischief, 
 indeed, would frequently ensue to the creditors, if assignees 
 were encouraged, by any laxity of construction, to disregard 
 regulations so important to the general interests of the 
 creditors. Therefore, where an assignee kept 346/. in his 
 
 casioned frequently considerable 
 losses to the creditors; and the 
 only means, which the Court had 
 to deter assignees from such mis- 
 conduct, was to make them pay 
 interest for all money wilfully re- 
 tained in their hands. Ex parte 
 Lane, 1 Atk. 90. Turner v. Town- 
 send, 1 C. B. L. 274. 1 Cox, 50. 
 1 Bro. 384. Hilliai-d's case, 1 Ves. 
 89. Hanley v. Garratt, 5 Bro. 4fiO. 
 Ex parte Edwards, 6 Ves. 3. Ex 
 pnvtc Tnwn.ic7id., 1.5 Ves. 470. Ex 
 
 parte Baker, 18 Ves. 246. This 
 induced the legislature, first in the 
 49 G. 3. c. 121. s. 4. and now in 
 this act (section 104.), to impose 
 a severer pecuniary penalty upon 
 the assignees for not obeying the 
 directions of the creditors or com- 
 missioners, as to the deposit and 
 investment of the money belong- 
 ing to the bankrupt's estate. 
 
 (l) The former enactment in 
 the 49 G. 3. c. 121. s. 4. was if he 
 should wilfully retain, &c.
 
 Sect. 4.] OF THE ASSIGNEES. 3.39 
 
 hands for about three months, though without any evil Duty in 
 intention being imputed to him — and having in fact acted \°j.opcrtu. 
 
 meritoriously in the general matters of his trust, — he was, 
 
 nevertheless, ordered by Lord Eldon to pay the penalty of 
 20/. per ceni., from the time when he ought to have paid 
 the money into the bankers, (i) But where assignees gave 
 cheques upon the banker of the estate to an agent, to 
 enable him to purchase exchequer bills, pursuant to the 
 commissioners' order, for the benefit of the estate — and the 
 agent received the money and converted it to his own use, 
 but some time afterwards replaced it at the banker's, — it 
 was held, that the assignees were not, for the acts of an 
 agent so employed, chargeable with the 20 per cent, upon 
 the amount of the monies misapplied ; as this was not 
 a xsoilful retention or employment of the money for their 
 own benefit. (2) The penalty of 20 per cent, is to go in 
 augmentation of the general estate of the bankrupt, and 
 does not belong to any particular creditors, as a com- 
 pensation for the loss they have suffered from the acts of 
 the assignee. (3) Where an assignee died after the mis- 
 application of monies in his hands, the late Vice-Chancellor 
 thought that his estate was liable to pay the 20 per cent, 
 upon the funds misapplied, though the amount of this 
 jpenalty could not be considered (as the amount of the 
 misapplied funds was) a specialty debt against the de- 
 ceased assignee's estate (4) ; but Lord Eldon decided in 
 this case, that the estate could only be charged with 
 5 per cent. (5) The penalty is meant to apply to a solvent 
 assignee only, and is not intended to prejudice the general 
 creditors of a bankrupt assignee, against whom a different 
 penalty is imposed by the \05th section of the statute. 
 Therefore, where the assignee becomes bankrupt, his co- 
 
 (1) Ex parte Bray, 1 Rose, 144. these circumstances, be more liable 
 
 (2) Ex parte Wilkinson, Buck, to the penalty than he was before. 
 197. Quaere, whether though the (3) JVackerdarthv. Powell,Bnck. 
 word wilful is omitted in the new 4 95. 
 
 statute, the assignee would, under (4) Ibid. 
 
 (5) Id. 'JG.&J. 151.' 
 VOL. I. * z 2
 
 340 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 Duty in 
 
 collecting 
 
 property. 
 
 Where 
 one as- 
 signee 
 absconds. 
 
 assignee will only be permitted to prove for the amount of 
 the money so mis- employed, with interest at 5 per cent., 
 and not to include in the proof the penalty of 9,0 per 
 cent.[\) In order to charge the assignees in an action 
 with the 20 per cent, on balances retained, it seems, that 
 the commissioners ought previously to settle an account 
 charging them with such interest; and, as it is in the nature 
 of a penalty, it must be declared on specially^ and is not 
 recoverable on the common count for interest. (2) 
 
 Where money was deposited in the Bank in the names 
 of three assignees, and one of them absconded, an order 
 was made by Lord Eldon, that the Bank should pay the 
 cheques signed by the other two assignees. (3) 
 
 What may 
 be proved 
 against an 
 assignee. 
 
 Bankrupt 
 assignee 
 not en- 
 titled to 
 dividend 
 till when. 
 
 Section V. 
 
 When Assignees become Bankrujyt. 
 
 The bankruptcy of an assignee does not put an end to the 
 trust; and the money which he has received, remaining un- 
 accounted for by him, may be proved under his commission. 
 The proper person to prove is the solvent co-assignee; and 
 the amount of the proof will be the balance due from the 
 bankrupt assignee, with interest at 5 per cent. (4) But, if 
 a proof in the original bankruptcy be not made until after 
 the bankruptcy of the assignee, the demand of a creditor (so 
 proving under the original bankruptcy) cannot be proved 
 under the commission against the assignee, — and conse- 
 quently will not be barred (5) by the assignee's certificate. 
 
 When an assignee becomes bankrupt, his estate will not 
 be entitled to any dividend on the proof made by him 
 under the estate of which he was assignee, until full re- 
 imbursement is made to that estate of the money, which he 
 had in his hands at the time of his own bankruptcy (6); 
 
 (1) Ex parte Goldsmith, 1 G. & J. 
 405.; and see post, 296. 
 
 (2) Beresford v. Birch, 1 Carring. 
 N.P.375. 
 
 (3) Ex parte Hunter, 2 Rose, 565. 
 
 (4) Wackerbarth v. Powell, Buck. 
 495. Ex parte Goldsmith, supra. 
 
 (5) Ex parte Stonehouse, Buck. 
 531. 
 
 (6) Ex parte Bignold., 2 Mad. 470.
 
 Sect. 5.] OF THE ASSIGNEES. 341 
 
 for a man ought not to come as a creditor upon an estate, W7/<7h 
 of which he is himself a dcbtor.{\) TaSZpt. 
 
 Where two of three assignees became bankrupt, the 
 
 Wh 
 
 ere 
 
 solvent assiOTee, who had paid a debt due from the three ^ 
 
 ° , . two assig- 
 
 to the estate, was held entitled to prove a third of such nces bank- 
 debt against each of their estates. And if either of the ^"^^^' ^°^' 
 ° . . vent as- 
 
 estates proved deficient, it seems, that he would not have signee may 
 been restricted from proving a moiety of the deficiency, P'jo^^ 
 against the estate of the other assignee. (2) 
 
 By section 105. of the new statute, if any assignee shall Certificate 
 retain in his hands, or employ for his own benefit, any sum ^^ ^ bank- 
 to the amount of 100/. of the bankrupt's estate, and become nee, who 
 bankrupt himself, being so indebted to the estate of which misapplies 
 he is assignee, his certificate will only have the effect of jog^ ^o^ 
 freeing his person from arrest and imprisonment; but his protect his 
 Juture effects (with certain exceptions) will remain liable effects 
 for so much of his debts to the estate of which he was as- 
 signee, as shall not be paid by dividends under his com- 
 mission, together with interest for the whole debt. 
 
 The penalty of 20 percent, imposed by the 104<M section, 
 it has been already (3) observed, does not apply to the 
 case of a bankrupt assignee ; for that vi^ould operate as a 
 prejudice to his own general creditors, without imposing 
 scarcely any penalty on himself for his default. The 105//^ 
 section, therefore, provides a severer penalty, by rendering 
 his future effects liable to the extent of his default, not- 
 withstanding his certificate. 
 
 By a general order (4) of Lord Loughborough, if an as- Bankrupt 
 
 signee become bankrupt, he is to be removed, and ceases to assignee 
 . • /^\ A J • I 11 • ^ to be re- 
 
 be an assignee. (5; And m that event, as well as m case or moved 
 
 his death, upon application made to the major part of the ^^^ 3"- 
 
 commissioners, and signed by one or more creditors, who pointed. 
 
 have proved under the commission and are entitled to vote 
 
 (1) E\ parte jB ebb, l9Ves. 222. (3) See ante, 3.59. 
 Ex parte Graham, .3 V. & B. 158. (4) 8th March, 1794. 
 
 2 Rose, 74. (5) And see ex parte Newlon, 
 
 (2) Ex parte Himlvr, Buck. 552. 1 Atk. 96. 
 
 z 3
 
 342 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 IV/ien 
 
 assignees 
 harilirujit. 
 
 in the choice of assignees, the commissioners are to cause 
 notice to be given in the Gazette of the time and place to 
 proceed to the choice of a new assignee, instead of the one 
 become bankrupt, or dead. And, as this general order 
 supersedes thenecessity of a petition for removal, such a 
 petition, if presented, will be dismissed with costs. (1) 
 
 Section VI. 
 
 Lord 
 Chancel- 
 lor may 
 vacate any 
 convey- 
 ance or as- 
 signment ; 
 
 and order 
 commis- 
 sioners to 
 execute a 
 new one. 
 
 Of' the Removal of' Assignees. 
 
 By the Q6th sectiofi of the new statute, the Lord Chan- 
 cellor has full power given him, upon petition, to order 
 any conveyance (2) or assignment of the bankrupt's estate 
 to the assignees to be vacated ; provided that no title of 
 any purchaser prior to such order be thereby affected, and 
 that no estate previously barred be thereby revived. (3) 
 And the Chancellor may, also, at the same time order the 
 commissioners, to execute a new assignment, of the debts 
 and effects unreceived and not disposed of, to any other 
 person or persons to be chosen by the creditors, as well as 
 a new conveyance of the real estate unsold, or not con- 
 veyed. And if such new assignment shall be ordered, the 
 debts and personal estate of the bankrupt are declared to 
 be thereby vested in such new assignees. The commis- 
 sioners are directed, also, upon such removal and ap- 
 pointment, to cause advertisements giving notice thereof 
 to be inserted in the two next London Gazettes ; and if a 
 new conveyance shall be ordered, it is declared to be valid 
 
 I (l) Ex parte Watts, 1 Rose, 436. 
 (2) This is an extension of the 
 5 G. 2. c.oO. s. 31., under which 
 statute there was sometimes a dif- 
 ficulty in vacating the bargain and 
 sale to the assignees of the freehold 
 property of the bankrupt ; as that 
 statute only spoke of vacating the 
 
 assignment. See ex parte Corry, 
 Buck. 316. In re Goodchild, Buck, 
 322. note. Ex parte Bainbridge, 
 6 Ves. 451. Ex parte Leman, 
 13 Ves. 271. 
 
 (3) And see In re Goodchild, 
 Buck. 522. Ex parte Harns,oM&d. 
 475.
 
 Sect. 6.3 OF THE ASSIGNEES. 343 
 
 without any conveyance from the former assignees, pro- Removal. 
 vided that the order for vacating any bargain and sale be 
 enrolled, and that any new bargain and sale be also en- 
 rolled in the same court as the first. 
 
 The power possessed by the Lord Chancellor, of removing Grounds 
 assignees, will always be exercised in a case of gross mis- ^^ ^^^ c 
 conduct. (1) Thus, if an assignee makes use of, or trades assignees, 
 with, the bankrupt's property for his own benefit (2), per- 
 mits improper expenses by the commissioners (3), or pur- 
 chases an estate belonging to the bankrupt (4), he will be 
 removed ; and in the last case, a co-assignee who permitted 
 such purchase, was also ordered to be removed. So, where 
 an assignee refuses to act (5); or is proved to be insolvent, 
 or to have compounded with his creditors ; or where an ac- 
 count cannot be conveniently and justly taken while he 
 remains assignee, — he will, also, in either of these cases be 
 removed. (6) But the mere circumstance, that the assignee 
 has an unsettled account with the bankrupt, or that his 
 debt may be disputed by the creditors, is not a sufficient 
 cause for his removal ; unless, indeed, there is something 
 in the nature of his interest, rendering it impossible to take 
 the account with due impartiality and justice. (7) An as- 
 signee, who becomes bankrupt, we have already seen, is 
 removeable under the general order (8), which supersedes 
 the necessity of a petition to the Chancellor for that pur- 
 pose. And an assignee permanently residing in Scotland.^ 
 or having quitted this country, will be removed upon 
 petition; for the Court has no hold over him, and can 
 reach him by no process (9), — and in such a case, service 
 of the petition at his last place of abode will be deemed 
 
 (1) Ex parte Halliday, 7 Vin. Ab. (5) Ex parte Kersley, Buck. 477. 
 77.12 Ves. 1 3. (6) Ex parte Surtees, 1 2 Ves. 1 0. ; 
 
 (2) Ex parte Toiunsend, 1 5 Ves. and see ex parte De Tastct, 1 Rose, 
 470. 324. 
 
 (5) 7Vin. Ab. 77. (7) Ibid. 
 
 (4) Ex parte Reynolds, 5 Ves. (s) Ante, 342. 
 707. (9) Ex parte Grey, 15 Ves. 274. 
 
 z 4- 
 
 i
 
 3M< 
 
 Removal. 
 
 OF THE ASSIGNEES. 
 
 [Ch. 10. 
 
 May be 
 removed 
 before as- 
 signment. 
 
 As to the 
 assignment 
 to the new 
 assignee. 
 
 Where 
 one of 
 several 
 assignees 
 refuses to 
 act. 
 
 good service. (1) But it is not a valid ground for the 
 removal of assignees, that the commissioners improperly 
 rejected the proof of a debt, that would have turned the 
 choice, — unless the rejection was fraudulent. (2) 
 
 The bankrupt cannot petition for the removal of 
 assignees, without the concurrence of, at least, one 
 creditor. (3) 
 
 If the circumstances of the case require it, an assignee 
 may be removed by the Lord Chancellor, even before the 
 execution of the assignment from the commissioners (4), 
 and so as to dispense with that formality. 
 
 Where an assignee formerly became bankrupt and was 
 removed, his assignees^ as well as himself, were obliged to 
 join with the commissioners in executing an assignment (5) 
 to the new assignee, who might be chosen in his room under 
 the original commission, — though that proceeding, since the 
 5G.2. c. 30., appears to have been somewhat unnecessary. (6) 
 In subsequent cases, however, where assignees were dead, or 
 had absconded, or from other causes could not execute the 
 assignment to the new assignees, the Lord Chancellor, 
 under the authority of the 5 G. 2. c. 30. s. 31., directed the 
 first assignment to be vacated, and ordered an immediate 
 assignment from the commissioners to the new assignee. (7) 
 And this practice is conformable to the above directions of 
 the present statute. 
 
 Where one of three assignees refused to act, and the 
 estate was small, and would have derived no advantage 
 from the choice of another in his room, the assignment and 
 bargain and sale were ordered by the Vice-Chancellor to 
 be vacated, and a new assignment and bargain and sale 
 
 (1) Ex parte Bonbonus, 3 Mad. 
 '2o. Ex parte Corry, Buck. 314. 
 
 (2) Ex parte Durent, Buck. 201. 
 (5) Ex parte Townsend, Eden, 
 
 B. L. fid ed. 222. 
 
 (4) Ex parte Shaiu, 1 G. & J. 1 55. 
 
 (5) Ex parte Newton, 1 Atk. 96. 
 
 (6) Per Lord Eldon, in re Good- 
 dchily Buck. 323. in note. 
 
 (7) Ex parte Bainbridge, 6 Ves. 
 451. Ex parte Bury, C. B. L. 276. 
 Ex parte Wilson, ibid. Ex parte 
 Leman, 13 Ves. 271 . Ex parte Hig- 
 ghis, 1 Ball & B. 218.
 
 \ 
 
 Sect. 6.] OF THE ASSIGNEES. 345 
 
 made to the two acting assignees, without directing a new Removal. 
 choice of another assignee. ( 1 ) 
 
 In all cases where an assignee is removed, an action for 
 money had and received may be maintained against him by 
 the remaining assignee. (2) 
 
 A mere order of the Lord Chancellor for removing one A mere 
 of several assignees, not followed up by any re-assignment, removal 
 or release, of such assignee to the remaininjr assifjnees, nor docs not 
 by any new assignment by the commissioners, does not /^^[ ^ ^ 
 operate to divest the legal estate out of such removed estate, 
 assignee. And therefore, in a case of this kind, where 
 the remaining assignees (three in number) brought an 
 action of trover, though there was no plea in abatement by 
 the defendant to the whole action, they were held entitled 
 to recover only three fourths of the property for which the 
 action was brought. (3) 
 
 If an assignee applies to be removed upon his own Where an 
 
 petition, it seems that he should make an affidavit, that he "^'^'g"^^ 
 r ^ ' applies to 
 
 does not apply under an apprehension, that any application be re- 
 will be made against him by another person for that pur- '"oved. 
 pose. (4) And whenever an assignee wishes to retire, he will Must pay 
 be required to pay the costs of a meeting for a new choice, t'le costs of 
 and of his application to retire — as well as to give security 
 (to be approved of by the Master) (5 ) to indemnify the estate 
 against any costs of legal proceedings already commenced, 
 and not continued by the new assignee, unless the Master except 
 reports that such costs were properly incurred. He must, 
 also, permit the new assignee to use his name in any legal 
 proceedings already commenced, upon being indemnified 
 by the new assignee. (6) Where an assignee, however, is 
 removed for the convenience of the estate — as in case of 
 
 {1)FjX parte Kerslei/, Buck. 477. (5) The commissioners have no 
 
 (2) 5??jifAv. Jfl7?2esow, Peake,215. authority, it seems, to take such 
 
 1 Esp. 114. security. 
 
 (.3) Bloxam v. Hubbard, 5 East, (6) Ex parte Thorley, Buck. 
 
 407. 2"1. In re Roberts, ibid, 465. 
 
 (4) Ex parte Edtvards, 6 Ves. 5. 5 Mad. 273. 
 
 when.
 
 346 OF THE ASSIGNEES. [Cll. 10. 
 
 Removal, infirmity — he does not pay the costs occasioned by his re- 
 moval, as he does when removed (1) for his own con- 
 venience. Nor is he Hable to the petitioning creditor for 
 his bill of costs as taxed by the commissioners, unless 
 there is a charge of collusion between him and the new 
 assignee. (2) 
 
 (l) Anon. 5 Mad. 76. (2) In re Gibson, 1 G. & J. 303.
 
 347 
 
 CHAP. XL 
 
 OF THE ASSIGNMENT BY THE COMMISSIONERS. 
 
 PART I. 
 
 Sect. 1 . Of Freehold Property generally^ and the Mode of 
 Conveyance. 
 
 2. Of Copyholds. 
 
 3. Of Mortgages. 
 
 4. Of Offices. 
 
 5. Of Advowsojis. 
 
 6. Of Reversions. 
 
 7. Of Powers. 
 
 8. Of a Possibility. 
 
 9. Of a volunta7y Conveyance. 
 
 10. Of an executory or beneficial Contract. 
 
 11. Of the Estate of the Wife^ and Property settled 
 
 hy the Bankrupt on his Wfe and Children. 
 
 riAviNG considered generally in the preceding chapter 
 the nature of the interest taken by the assignees under the 
 assignment of the commissioners, it is proposed in the pre- 
 sent one to specify more particularly the effect and oper- 
 ation of the assignment, as it regards the various species 
 of the bankrupt's property, dividing the subject into two 
 parts : viz. 
 
 1. As it affects the Bankrupt's Real Estate. 
 
 2. As it aflfects the Personal Estate. 
 
 The Real estate may be treated of more conveniently 
 under the foregoing heads.
 
 348 
 
 OF THE ASSIGNMENT [Ch.ll. Pt. 1 . 
 
 Commis- 
 sioners to 
 convey to 
 assignees 
 the bank- 
 rupt's 
 lands, &c. 
 
 Commis- 
 sioners 
 have only 
 
 Section I. 
 
 Of Freehold Projperty generally, and the Mode of 
 Conveyance. 
 
 By section 64. (1) of the new act, the commissioners are 
 directed, by deed indented and inrolled in any court of 
 record, to convey to the assignees, for the benefit of the 
 creditors, all lands, tenements, and hereditaments (except 
 copyhold or customary hold) in England, Scotland (2), 
 Ireland, or in any of the dominions, plantations, or colonies, 
 belonging to his majesty, to which any bankrupt is entitled, 
 and all his interest therein, of which he might have dis- 
 posed himself, — as well as all such lands, tenements, and 
 hereditaments as he shall purchase, or which shall descend, 
 be devised, revert to, or come to, such bankrupt before he 
 shall have obtained his certificate ; together with all deeds, 
 papers, and writings respecting the same; and every such 
 conveyance shall be valid against the bankrupt, and all per- 
 sons claiming under him. Provided, however, that where, 
 according to the laws of any plantation, or colony, such 
 conveyance would require registration, enrolment, or re- 
 cording, the same shall be so done; and that, prior to the 
 same being done, the conveyance shall not invalidate the 
 title of any purchaser for valuable consideration, without 
 notice of the issuing of the commission. 
 
 The commissioners have no estate given them in the 
 bankrupt's real property, by virtue of this enactment ; but 
 
 (1) This section, (except as to 
 the provision respecting copyhold 
 and colonial property) is taken 
 from the 15 Eliz. c. 7. s. 11.; and 
 5 G. 2. c. 30. s. 26. 
 
 (2) Previously to this act, a com- 
 mission of bankruptcy in England 
 was held by the Court of Session, 
 not in itself to operate upon the 
 
 heritable property of the bankrupt 
 in Scotland, though it was con- 
 sidered to impose upon him a legal 
 obligation to execute the proper 
 conveyances, and do the necessary 
 acts for transferring such property 
 to his assignees. Bank of Scotland 
 V. Cuthbert, 1 Rose, 462. ; and see 
 Sellrig v, Davies, 2 Dow. P. C. 230.
 
 Sect. 1.] AS TO THE REAL ESTATE. 349 
 
 only a power, which must be strictly executed according to Freeholds 
 the directions of the statute, viz. by deed indented and 1^"^'^" ^' 
 
 enrolled; otherwise it will have no execution or effect in 
 
 passing the estate. ( 1 ) No particular form of conveyance not'^an '^' 
 has ever been prescribed (by statute) for the commissioners estate. 
 to convey the bankrupt's real estate ; but that by huj-gain 
 and sale (2), as being the cheapest, has been always adopted 
 by them. Nor is any particular period of time limited in Bargain 
 the above section, for the inrolment of the conveyance; but 1^"^^^'"^,^ 
 under the statute of 27 Hen. 8. c. 16. (which applies to all enrolled 
 bargains and sales) it must be enrolled "doithin six months \'^p°"*' 
 after its date, or it becomes null and void. (3) If the com- 
 missioners, however, were to adopt any other form of con- 
 veyance than that of a bargain and sale, such conveyance 
 might be enrolled at any period. And though an enrolment 
 pursuant to the statute of enrolments relates back, in general, 
 to the date of the deed, yet in bankruptcy it is otherwise ; 
 for where an ejectment is brought upon a conveyance of 
 the commissioners, and the demise is laid after the date of 
 the deed, but hefore enrolment, (notwithstanding it may be 
 duly enrolled afterwards) the ejectment cannot be main- 
 tained. (4) The bargain and sale, therefore, should be 
 enrolled without delay ; and if it is lost without enrolment, 
 the Lord Chancellor will not make an order that the 
 counterpart shall be enrolled as the original deed. (5) 
 
 Where, however, lands had been bargained and sold by 
 a bankrupt hefore his hanlcniptcy, though the enrolment of 
 the bargain and sale did not take place until after the 
 bankruptcy — yet it was held in this case, that the com- 
 missioners had not power to convey these lands to the 
 assignees. (6) 
 
 (1) Perry v. Bowers, T.Jones, by, 12 Mod. 5. Bennetv. Gandy, 
 196. Carth. 178. 
 
 (2) For the form see Vol. II. (5) Ex parte Robson, Ambl. 180. 
 
 (3) Thomas v. Popham, Dyer, 2 Com. Dig. 25. 
 
 218. (6) Audley V. Walsey, Sir W. 
 
 (4) 1 Ventr. 360. Elliot v. Dan- Jones, 205.
 
 350 
 
 OF THE ASSIGNMENT [Ch.ll.Pt. 1. 
 
 Freeholds 
 generally. 
 
 Relation 
 of bargain 
 and sale. 
 
 Operation. 
 
 Passes a 
 vested con- 
 tingent 
 interest : 
 
 and a right 
 of action. 
 
 The bargain and sale does not (as the assignment does 
 with regard to the personal property) rci'nte b.icl- to the 
 act of bankruptcy ; for all the real estate of the bankrupt 
 remains in him, though not beneficially, until taken out of 
 him by the actual execution of the bargain and sale(l); 
 and therefore a demise in ejectment, though laid after the 
 act of bankruptcy, yet if it is before the date of the bargain 
 and sale, has been holden to be bad. A court of equity^ 
 however, has refused to dismiss a bill of foreclosure against 
 the assignees of a bankrupt mortgagor, on the ground, that 
 it was brought before the execution of the bargain and sale 
 by the commissioners, and that the assignees had no in- 
 terest which could be made the subject of foreclosure. (2) 
 As the conveyance of the bankrupt's lands to the assignees 
 operates only upon those estates, of which the bankrupt is 
 possessed, or to which he is entitled at ilie time of executing 
 the deed, — if, therefore, any future estates come to him, 
 between the time of the bargain and sale and the time of 
 his obtaining his certificate, there must be a new con- 
 veyance. (3) 
 
 But the conveyance of the freehold property passes any 
 contingent interest, which the bankrupt may have in any 
 lands or tenements, and which is vested in him at the time 
 of his bankruptcy. Therefore, where an estate was settled 
 to the bankrupt for life, with other intervening uses, re- 
 mainder to himself in fee, with power to change the uses, — 
 the remainder in fee was held to vest in the assignees, and 
 his power of revocation to be gone. (4) 
 
 A right of action is within the policy of the bankrupt 
 laws ; and therefore a right to bring a real action passes by 
 the general words hereditaments, right, claim, &c. in the 
 bargain and sale. (5) 
 
 (1) Doe V. Mitchell, 2 M. & S. 
 446. 
 
 (2) Bainbridge v. Pinhorn, Buck. 
 135. 
 
 (3) Ex parte Proud/oot, 1 Atk. 
 
 253. 1 P. Wms. 583. Billing, 118. 
 Cartel on v. Leighton, 3 Meriv. 667. 
 
 (4) Lofft, 71. ; and see post, 363. 
 
 (5) Smith V. Coffin, 2 V. & B. 444.
 
 Sect. 1.] AS TO THE REAL ESTATE. 351 
 
 A bankrupt's lands are not liable to a debt by statute or Freeholds 
 
 • • 1 • 1 f^enerally, 
 
 judgment, unless execution is taken out upon it more than ^^^ 
 
 two calendar months before the opening of the com- 
 
 . . , I -p I -1 Lands are 
 
 mission ; and not even tlien, it the statute or judgment j^q^ liable 
 
 creditor had notice of any act of bankruptcy at the time to a sta- 
 of levying such execution ; for, in that case, he can only j^idfrment 
 come in pro rata with the rest of the creditors, (l) But if debt.unless 
 a statute be extended upon the bankrupt's lands before the previously 
 period mentioned in the act, though the liberate is not taken out. 
 sued out till afterwards, — in that case, the lands are bound 
 by the statute. (2) And where lands descend to a bank- 
 rupt as heir, and the ancestor was indebted at the time of 
 his death, it has been determined, that a specialty creditor 
 has the same right to follow the real assets, or their specific 
 produce, in the hands of the assignees, as if the heir had 
 not become bankrupt. (3) 
 
 If a bankrupt is entitled to lands in joint-tenancy, and As to 
 dies, — it is said (4) by Billinghurst, that there is no right of l^"'^^ ^" 
 survivorship, and that his share may be sold under the nancy, 
 commission ; for that the bankrupt's moiety is bound by his 
 bankruptcy, — as he had power to sell it in his life-time, and 
 might have departed with it. (5) It seems doubtful, how- 
 ever, if the bankrupt died before the execution of the 
 bargain and sale, whether such moiety would in that case 
 pass to the assignees ; as the real estate, we have seen, is 
 not till then taken out of the bankrupt at law. (6) And if 
 the bankrupt dies before adjudication, the commission being 
 in that case absolutely void (7), the whole estate would, of 
 course, go to the surviving joint-tenant. As a valid 
 commission of bankruptcy, however, followed up by ad- 
 judication and assignment, operates as a dissolution of 
 
 {!) Neivlmidv. Watts, iP.Wms. (5) C. B. L. 279. Good, 89. 
 
 92. Orlebar v. Duhe of Kent, ibid. 2 Com. Dig. 26. 
 757.; and see section 81. (6) Doe v. Mitchell, ante, 504. 
 
 (2) 1 C. B. L. 373. (7) Ex parte Beale, 2 Ves. & B. 
 
 (5) Ex parte Morton, 5 Ves. 449. 29. 1 Rose, 140. 
 
 (4) Billing. 111.
 
 352 OF THE ASSIGNMENT [Ch. 11. Pt. L 
 
 Freeholds partnership, it seems to be agreed, that it also severs a 
 generally, joi„t-tenancy. (l) 
 With respect to estates tail, the commissioners are em- 
 
 to con- pQ^gj.g(j tQ convey such estates immediatelv to a purchaser- 
 veyance ot ^ _ -^ _ J t » 
 
 estates tail, without includin<( them in the bargain and sale to the 
 
 assignees, of the general freehold property of the bankrupt. 
 
 For by the 65th sectiori of the new act it is provided, that 
 
 the commissioners may in like manner by deed indented 
 
 and enrolled (2) make sale, for the benefit of the creditors, 
 
 of any lands, tenements, and hereditaments, situate either 
 
 in England, or Ireland, whereof the bankrupt is seised of 
 
 any estate tail in possession, reversion, or remainder, and 
 
 whereof no reversion or remainder is in the crown, of the 
 
 gift or provision of the crown. And every such deed will 
 
 be good against the bankrupt and the issue of his body, 
 
 and against all persons claiming under him after he became 
 
 bankrupt, as well as those whom the bankrupt by fine, 
 
 common recovery, or any other means, might cut off or 
 
 debar from any remainder, reversion, or other interest in 
 
 such lands, tenements, and hereditaments. 
 
 Where Where a remainder-man in tail becomes bankrupt, the 
 
 remainder- commissioners can only in such a case convey a base fee ; 
 
 man in , , . . ...,., 
 
 tail bank- ^^d even where a joint commission issued against the tenant 
 
 rupt, as- for life and the tenant in tail in remainder, it was holden, 
 
 ttJce only ^^^ ^^ assignees only took an estate for life in the pre- 
 
 a base fee. mises, and a base fee in remainder, determinable upon the 
 
 death of the tenant in tail, and failure of heirs male of his 
 
 body.(3) 
 A devise of Bankruptcy of itself has not the effect of revoking a 
 revoked*^ devise of the bankrupt's real estate, provided the debts are 
 
 (1) Evans on the Bankrupt Sta- pears to be taken ; but this section 
 tutes, 17. note(b). is, like that relating to the bank- 
 
 (2) A particular period of time rupt's other freehold property, 
 was limited for the enrolment of wholly silent upon the subject oi 
 the conveyance of the bankrupt's enrolment. 
 
 estate tail, by the 21 Jac. 1. c. 19. (5) Jarvis v. Tayleiir, 3 B. & A. 
 s. 12. from which this section ap- 557.
 
 Sect. 1.] AS TO THE REAL ESTATE. 353 
 
 satisfied without having recourse to such estate ; for the Freeholds 
 statute takes the property out of the bankrupt only for the ^^^" ^' 
 
 purpose of paying his creditors ; and from the moment 
 
 that the debts are paid, the assignees are mere trustees for ^ '^a'|'^- 
 the bankrupt, and can be called on to convey back the 
 surplus property to him.(l) 
 
 Where an assignee dies, and the bankrupt's real estate Where an 
 becomes vested in the heir of the assignee, who happens to assignee 
 be an infant, — a petition in that case should be presented to ing an in- 
 the Lord Chancellor to order the heir, as an infant trustee, ^''"'^ '^^''■• 
 to execute any necessary conveyance to a purchaser; but 
 the application must be made to the Chancellor, not as 
 sitting in bankruptcy, but under the statute of the 7 Ann. 
 c. 19. relating to infant trustees and mortgagees. (2) ^ 
 
 By section 8 1 . of the new act, all conveyances by a bank- Convcy- 
 
 rupt, and all executions and attachments against his lands ^"^es, &c. 
 ^ ' . *=• more than 
 
 and tenements bond Jide executed or levied more than two two 
 
 calendar months before the issuing of the commission, are J"onths 
 
 declared to be valid, notwithstanding any prior act of bank- commis- 
 
 ruptcy, provided the party had not at the time notice of ^io", vahd. 
 
 any prior act of bankruptcy. 
 
 And for the better security of the purchasers of the Lord 
 
 bankrupt's estate, it is by the ISth section of the statute f^"^"cel- 
 
 ^ ' •' ... lor may 
 
 enacted, that the Lord Chancellor may, upon the petition order 
 
 of the assignees, or of any purchaser from them of any part l«"ikrupt 
 of the bankrupt's estate, (if the bankrupt shall not try the any con- 
 validity of the commission, or if there shall have been a veyance. 
 verdict at law establishing its validity) order the bankrupt 
 to join in any conveyance of such estate, or any part 
 thereof; and though he should fail to comply with such 
 order, the bankrupt, nevertheless, and all persons claiming 
 under him, will be estopped from objecting to the validity 
 of such conveyance ; and all estate, right, or title of the 
 
 {\) Chanmn\.Charman,\'^Ves. (2) Ex parte Beddom, 1 Rose, 
 ,•580. 310. Ex parte Kirk, Buck. 478. 
 
 A A
 
 354< 
 
 OF THE ASSIGNMENT [Ch. 11. Pt.l. 
 
 bankrupt will be as effectually barred by such order, as if 
 the conveyance had in fact been executed by him. 
 
 Copyholds 
 to be con- 
 veyed by 
 the com- 
 missioners 
 to a pur- 
 chaser. 
 
 Section II. 
 Of Copyholds. 
 
 In order to save the expense of more than one fine to 
 the lord, upon the conveyance of the bankrupt's copyhold 
 estate, that species of property is, as we have already 
 seen(l), expressly excepted out of the general conveyance 
 of the bankrupt's real estates to the assignees. For, if it 
 was conveyed to them along with the freehold property, 
 they could not make a good title to a purchaser, without 
 first being admitted as tenants to the lord, and then sur- 
 rendering to the purchaser ; and as a fine is payable to the 
 lord upon every admittance, there would thus be two fines 
 paid, before the purchaser could be effectually admitted. 
 This inconvenience was adverted to so long ago as in the 
 time of Lord Hardwicke (2), who recommended the com- 
 missioners to do then, what they are now expressly directed 
 to do by the provision of the present statute ; — namely, 
 to except the copyholds out of the general conveyance to 
 the assignees, and to convey them to a purchaser in the 
 first instance. 
 
 Thus, by the 6^th section of the new act, the commis- 
 sioners are directed, by deed indented and enrolled in any 
 court of record, to make sale, for the benefit of the cre- 
 ditors, of any copyhold (3), or customary hold lands, or of 
 
 (1) Section 64. ante, 348. 
 
 (2) Drury v. Mann, 1 Atk. 96. ; 
 and see ex parte Harvey, Buck. 
 44.5. Ex parte Holland, 4 Mad. 
 483. The practice adopted in con- 
 sequence of this recommendation 
 of Lord Hardwicke, seems, never- 
 theless, to have been incorrect, 
 according to the strict construc- 
 
 tion of the 5 G. 2. c. 30. s. 26. ; by 
 which the commissioners were cU- 
 rected to assign all the bankrupt's 
 estate to the assignees. And sec 
 1 Christian's B.L.'l5. 472. 
 
 (3) Of all the former bankrupt 
 acts previous to the 5G. 4. c. 98. 
 copyholds were only expressly 
 named in the isEliz. c. 7. s. 3. 
 
 14
 
 Sect. 2.] AS TO THE REAL ESTATE. 355 
 
 any interest to which the bankrupt is entitled therein, and Copyholds. 
 thereby to entitle or authorise any person on their behalf, 
 to surrender the same for the purpose of any purchaser 
 being admitted thereto. 
 
 And for the protection, also, of the lord, of whom such Purchaser 
 copyhold estates are held, it is enacted, that every such pound " 
 purchaser shall, before he enter into or take any profit of with lord 
 the same, agree and compound with the lord for fines, j|^j ,"j^^' 
 dues, and other services, as theretofore have been usually to be ad- 
 paid for the same ; — who shall thereupon, at the next or """'^''• 
 any subsequent court to be holden for the manor, grant 
 unto such vendee upon request the said copyhold lands, 
 for such estate or interest as shall have been so sold to 
 him, reserving the ancient rents, customs, and services, 
 and shall admit him tenant of the same. 
 
 If the vendee tenders to the lord a competent fine, which When 
 
 the lord refuses, and will not admit, the vendee may never- "^i!|^ ^"'■^' 
 
 theless enter (1) without admittance; for though a pur- admit- 
 
 chaser cannot in general enter and take the profits before ^^''^^"ce. 
 
 admittance, yet this is only a regulation for the benefit of 
 
 the lord, — the estate being out of the bankrupt immediately Relation 
 
 by the bargain and sale, and vesting in the purchaser when °'.*"^ '^f" 
 
 . ^ . . gam and 
 
 admitted, by relation from the bargain and sale, so as to sale. 
 
 avoid any intermediate claims. Thus, if the bankrupt die 
 between the bargain and sale and the admittance of the 
 purchaser, and the custom of the manor is, that the wife of 
 any copyholder dying tenant, shall be entitled to her free- 
 bench, yet the wife of the bankrupt in this case will not be 
 entitled to be so endowed. (2) 
 
 And where a bankrupt was entitled to a copyhold estate — When 
 under a devise to testator's wife for life, remainder to the bankrupt 
 bankrupt and the heirs of his body, with remainder over in being ad- 
 case the bankrupt should die without issue, or should not netted, 
 
 , . , , , . . and before 
 
 survive his mother — and there was no custom m the manor ^j,g ^,.jj._ 
 
 to entail copyholds — and the bankrupt survived his mother 8^'" and 
 
 sale. 
 
 ( J) Stone, 127. (2) Parker \.Blccke,Qxo.OM. 
 
 5GR. Sir W.Jones, 451. 
 
 A A 2
 
 356 
 
 OF THE ASSIGNMENT [Cll. 1 1 . Pt. 1. 
 
 Copyholds, and had issue, but died without being admitted, and before 
 any bargain and sale was executed by the commissioners, — 
 it was held, that the bankrupt took, under these circum- 
 stances, a fee simple conditional at common law; and that 
 the commissioners might execute a valid conveyance of the 
 estate, notwithstanding his death, pursuant to the provision 
 of the 1 Jac. 1. c. 15. s. 17. (contained in the 26th sectimi of 
 the new statute), which authorises the commissioners to 
 proceed in the commission, when the bankrupt dies after 
 adjudication, as they might have done if he were living. (1) 
 
 Assignees 
 
 may 
 
 tender 
 
 money 
 
 due on 
 
 mortgage. 
 
 But must 
 pay in- 
 terest up 
 to redemp' 
 tion. 
 
 Where 
 two mort- 
 gages. 
 
 Section III. 
 Of Mortgages. 
 
 By section 70. of the new act, if the bankrupt shall 
 have granted, conveyed, assured, or pledged any real or 
 personal estate, or have deposited any deeds upon con- 
 dition, or power of redemption at a future day, by payment 
 of money or otherwise, the assignees may, before the time 
 of the performance of such condition, make tender or pay- 
 ment of money, or other performance, according to such 
 condition, as fully as the bankrupt might have done ; and 
 after such tender, payment, or performance, may sell and 
 dispose of such real or personal estate for the benefit of the 
 creditors. 
 
 The assignees have always been considered, to be entitled 
 to the equity of redemption of a mortgage made by the bank- 
 rupt. (2) But they cannot redeem, without paying interest 
 up to the time of redemption. (3) And where a bankrupt 
 made two mortgages to the same mortgagee of two several 
 estates, and one of the estates was deficient in value, and 
 the assignee filed a bill to redeem one mortgage only, the 
 
 (1) Doe V. Clark, 5 B. & A. 458. 
 
 (2) Vandenanker v. Desbrovgh, 
 2 Vcrn. 96. 
 
 (3) 7 Vin. Ab. 100.
 
 Sect. 3.] AS TO THE REAL ESTATE. 357 
 
 Court said, that if the assignee would redeem one, he must Mori- 
 
 redeem both. ( 1 ) ^ "^^^' 
 
 If a tenant in tail makes a mortgage for years, and after Where te- 
 
 becominff bankrupt dies without having suffered a re- "ant in tail 
 , . . • 1 1 1 c f I mortgages, 
 
 covery, his assignees are entitled to the estate tree or the without 
 
 mortgage ; for a tenant in tail, without suffering a re- suffering a 
 
 covery, can only affect the estate for his life; and after 
 
 his death the mortgagee's title is consequently at an 
 
 end. (2) But, if the mortgage deed in such a case contain 
 
 a covenant for further assurance, — it has been held, that 
 
 the mortijaoee would then be entitled to retain his security 
 
 against the assignees ; on the principle, that they are bound 
 
 by the same equity as the mortgagor. (3) 
 
 Where a bankrupt deposits a lease as a security for As to an 
 
 money, without making any mortgage or assignment of it, ^^"rtcace 
 
 the legal estate is strictly vested in the assignees. (4) But, 
 
 as such a deposit amounts to an equitable mortgage, and 
 
 the assignees have no right to the estate until the money is 
 
 repaid (5), the Lord Chancellor will, on petition of the 
 
 creditor, prevent the assignees from disposing of the legal 
 
 estate to his prejudice, and will order the lease to be sold 
 
 for the benefit of the creditors, in the same manner, as in 
 
 the case of a legal mortgage. So where a bankrupt had Where 
 
 mortgaged copyhold lands — but the surrender was neg- n^^^^^ „ j 
 
 lected to be presented within the time limited by the cus- without 
 
 torn, and the bankrupt afterwards died, — the Court of surrender. 
 
 (1) Po/)ev.OM5/oii;, 2 Vern. 286.; table mortgage is, ex vi termini, 
 and see Willis v. Lugg, 2 Eden's held to imply, an agreement to do 
 Rep. 78. note. all legal acts to give validity to the 
 
 (2) Beck V. Welsh, 1 Wils. 276. assurance. See Evans's Bankrupt 
 
 (3) Pi/c v. Daubuz, 3 Bro. 594. Statutes, 73. note (11). 
 Edwards v. Applebee, cited 2 Bro. (4) Mastair v. Roe, 5Esp. 105. 
 652. This distinction, as Sir W. (5) Russel v. Russel, 1 Bro. 269. 
 Evans has justly observed, does and cases there cited. Ex parte 
 not seem in practice to be very Coming, 9 Ves. 115. Ex parte Wc- 
 important, as there is never any theraU, 1 1 Ves. 39«. Ex parte 
 legal mortgage without a covenant Haigh, ibid, 405. 
 
 for further assurance ; and an eqid- 
 
 A A 3
 
 358 
 
 OF THE ASSIC4NMENT [Cll. ll.Pt. 1. 
 
 Mort- 
 gages. 
 
 When 
 morti^agcc 
 not en- 
 titled to 
 crops. 
 
 Where as- 
 signees of 
 mortgagor 
 not obliged 
 to refund 
 rent. 
 
 As to ap- 
 plication 
 for an im- 
 mediate 
 decree to 
 redeem. 
 
 Cliancery would not permit the assignees to take advan- 
 tage of the defect. (1) 
 
 When the mortgagor in possession is, by express con- 
 tract, tenant at will to the mortgagee, it has been held, that 
 the mortgagee is not entitled to the crops upon the mort- 
 gaged premises, at the bankruptcy of the mortgagor, or at 
 the time of the order for sale by the commissioners. (2) 
 And where the tenant in possession of mortgaged premises 
 paid rent to the assignees of the mortgagor, though after 
 notice to pay rent to the mortgagee, — the Court refused 
 to compel the assignees to refund ; for a mortgagor, receiv- 
 ing rent, has never been considered a trustee for the mort- 
 gagee. (3) 
 
 Where the mortgagor becomes bankrupt after a bill of 
 foreclosure is filed against him, and then a supplemental 
 bill is filed against him and his assignees, — the Court will 
 not, on the application of the assignees alo7ie, make an im- 
 mediate decree under the 7 G. 2. c. 20. s. 2., as to the right 
 of redemption, on payment of principal and interest due on 
 the mortgage. (4<) 
 
 For further information as to creditors holding a legal 
 or equitable mortgage, the reader is referred back to 
 Chapter IX. Section 6., where the subject has been already 
 fully considered. 
 
 Section IV. 
 Of Offices. 
 
 An office The commissioners may make sale of offices of inherit- 
 ^^Tss it ' ^"^^ ^^^ terms of years, which are held by the bankrupt 
 concerns at the time of his bankruptcy, and from which any benefit 
 
 (1) Taylor v. Wheeler, 2 Vcrn. 
 565. 
 
 (2) Ex parte Temple, 1 G. & J. 
 2)6.; and see Hodgson v. Gas- 
 coignc, 5B. &A. 88. 
 
 (3) Ex parte Wilson, 2 V. & B. 
 252. 1 Rose, 444. 
 
 (4) Garth v. Thomas, 1 Sim. & 
 
 S. 188.
 
 Sect. 4.] AS TO THE REAL ESTATE, 359 
 
 is derived, except offices touching or concerning the ad- Offices. 
 
 ministration or execution of justice ; — which latter de- the admi- 
 
 scription of offices are expressly prohibited to be sold by nistration 
 
 the 5 & 6 Edw. 6. c. 16. The proper course of proceed- "[J"f"<=^' 
 I / 1 1 1 T 1 TT , . . V Mode of 
 
 ing in tliese cases (as recommended by Lord Hardwicke) nroceed- 
 
 is for the assignees to settle the price with a purchaser, and '"S- 
 then to propose him for the approval of the person having 
 the power of admission, — upon which the bankrupt must 
 surrender the office in his favor; otherwise the Lord 
 Chancellor will compel him to do so, under pain of impri- 
 sonment. (1) 
 
 The place of imder-marshal of the City of London, Wliat as- 
 which is merely an office of police, and which was pur- signable. 
 chased by a bankrupt, and held qiiamdiu se bene gesserit, 
 has been held to be assignable. (2) So, also, the place of 
 one of the gentlemen pensioners (3), as well as the office 
 of taking care of the palace and House of Lords, have 
 been holden liable to creditors. (4) 
 
 But the office of Serjeant at arms of the City of London, What not 
 though it is purchased for a sum of money, and is also assignable, 
 holden quamdiu se bene gesscrit, has been determined to be 
 not assignable (5), on the ground of its being one that 
 concerned the administration of justice. (6) And the same, 
 with respect to the office of one of the sworn clerks of the 
 six clei-ld office. (7) So, the full pay or half pay of an 
 officer in the army (8) has been held to be not assignable, 
 
 (1) lAtk. 210. Arabl. 75. iC. office like that of serjeant at amis; 
 B. L. 283. one may be considered a criminal, 
 
 (2) Ex parte Butler, 1 Atk. 210. and the other a civil office. 
 215. Ambl.73. (7) Bristow's case, 1 Atk. 212. 
 
 (3) Ex parte Jot/nes, 1 C. B. L. (8) Mr. Justice Buller, in one 
 283. Ex parte GUbce, ibid. case {Flarly v. Odium, 5 T. R. 68 1 .) 
 
 {4) Schelingerv.Blackerb7/,lYes, seemed to think, that though an 
 
 347. officer could not assign his pay, 
 
 (5) 1 Atk. 212. yet he might assign such arrears 
 
 (6) Not more, however, it is of it as were actually due ; but in 
 apprehended, than that of under Cailicartv.Blacl:woud,{mi'rs..)i\.was 
 marshal J for an office of police principally the a>T<7a;i-, that seemed 
 seems as much connected with the to have been in question, 
 administration of justice, ab an 
 
 A A 4
 
 S§0 OF THE ASSIGNMENT [Cll.ll. Pt. 1. 
 
 and this upon principles of public policy. ( 1 ) The place 
 of a jew broker, also, in the city of London, has been 
 holden not assignable ; — though this was considered to be 
 no office at all — such a person being merely one of a 
 particular description, and of a limited number, who are 
 licensed as brokers by the Court of Aldermen. (2) 
 
 Section V. 
 Of Advowso7is. 
 
 Commis- Where the patron of a living becomes bankrupt, the 
 
 inaT'^^11 commissioners may sell the advo'wso?i ; — and so with re- 
 
 an advow- spect to a right of next presentation to a living. But if 
 
 T"t*"^ the church be void, then the presentation cannot be sold ; 
 
 sentation, for the void turn of a church is not valuable (3) ; and the 
 
 unless the bankrupt, therefore, in that case is entitled to present. For 
 
 church be • n\ • 
 
 void. the 77//z section of the new statute, enabling assignees to 
 
 execute powers (4) vested in the bankrupt, contains an ex- 
 press exception of the right to nominate to any vacant 
 ecclesiastical benefice. 
 
 If a clergyman be bankrupt, his living is liable to a 
 sequestration ; and the proceeds are distributable amongst 
 his creditors. (5) 
 
 (1) Cathcart v. Blackwood, 1 C. (2) Ex parte Lyons, Ambl. 89.; 
 
 B.L. 284. \xi re Kennedy, ih. And and see an able note of Sir W. 
 
 see Flarty v. Odium, sT. R. 681. Evans, in his Collection of the 
 
 Lauderdale v. Duke of Montrose, Statutes on Bankruptcy, B. L. 15. 
 
 4 T. R. 248. Barimck v. Read, as to what offices are and are not 
 
 1 H. B. 627. Stone v. Lidderdale, assignable under a commission, in 
 
 2 Anst. 533. Contra Stuart v. which he expresses a doubt that 
 Tinker, 2 Bl. 640. as to cases of Lord Hardwicke's decision in ex 
 insolvent debtors. But now by the parte Butler, supra, will not stand 
 last Insolvent Act, (vG. 4. c. 57. the test of fair and deliberate ju- 
 s. 29.) a certain portion only of the dicial inquiry. 
 
 pay of an insolvent officer in the (3) Gibs. 794. 1 Burn's Eccle- 
 arniy, or navy, can be assigned siastical Law, 125. 
 under particular restrictions, for (4) Sec post, 362. 
 the benefit of his creditors. (5; Ex parte Meyimtt, 1 Atk. 
 
 200. ; but see ante, p. 20.
 
 Sect. 6, 7. J AS TO THE REAL ESTATE. 361 
 
 Section VI. 
 Of Reversions. 
 
 As the commissioners are by section 64. ( 1 ) empowered 
 to convey all the interest^ to which any bankrupt is entitled 
 in any lands or hereditaments, and which he may by law 
 dispose of, — it seems to follow, that they may convey a re- 
 version, or remainder^ of the bankrupt ( as well as lands in 
 possession), or indeed any future interest which is vested in 
 the bankrupt at the time of the issuing of the commission — 
 such as a term to commence m Jicturo. (2) 
 
 And the 65th section of the new statute, as has been 
 already stated (3), expressly enables the commissioners, in 
 the case of an estate tail of the bankrupt, to make sale of 
 any reversion, or remainder, of such estate, whereof no re- 
 version or remainder is in the crown. 
 
 Section VII. 
 Of Powers. 
 
 When a power of appointment was vested in a bankrupt, Former 
 it seems to have been for some time a point unsettled, ""^cer- 
 whether the bargain and sale of the commissioners had the to the 
 same operation, as a due execution of the power by the vesting ol 
 bankrupt. (4) In one case it was decided, that a bank- [^g 3^. 
 rupt, who has an absolute power of appointment, could signees^ 
 not be compelled by a decree, on a bill in equity filed 
 against him, to execute such power in favour of his as- 
 signees. (5) In a subsequent case, however, in the King's 
 Bench, where the bankrupt was seised of a life estate with 
 
 (1) Ante, 348. (4) Siigden on Powers, 154. 
 
 (2) ii Com. Dig. 25, Good. 88. (5) Thorpe v. Goodall, I Robe, 
 
 (3) Ante, 352. 4j. 17Vcs.270,
 
 362 
 
 OF THE ASSIGNMENT [Ch. 11. Pt. 1. 
 
 Poiucrs. 
 
 But now 
 
 all powers, 
 with one 
 exception, 
 declared 
 to be 
 vested in 
 them. 
 
 Powers of 
 attorney. 
 
 the general power of appointment, with remainder in 
 default of appointment to himself in fee — and after his 
 bankruptcy he executed his power of appointment in 
 favour of an apprentice, — it was held that, all his interest 
 having passed to the assignees by the assignment from the 
 commissioners, such appointment was void, and that his 
 assignees had a sufficient legal estate to maintain an eject- 
 ment. (1) And in a former case, too, where an estate was 
 limited to the bankrupt for life, with other intervening 
 uses, and remainder to himself in fee, with power to 
 change the uses, — the remainder in fee was held to 
 vest in the assignees, and his power of revocation to be 
 gone. (2) 
 
 But all question, as to powers of appointment vesting in 
 the assignees, is now set at rest by the 77//? section of the 
 new statute, which provides that all powers vested in any 
 bankrupt, which he might legally execute for .his own 
 hcncfit, (except the right of nomination to any vacant 
 ecclesiastical benefice) may be executed by the assignees, 
 for the benefit of the creditors, in such manner as the 
 bankrupt might have executed the same. And, inde- 
 pendently of this express provision as to powers of ap- 
 pointment, the l^tli section (as we have seen (3) ) also 
 enables the Lord Chancellor to order the bankrupt, to join 
 in any conveyance to a purchaser under the commission of 
 any part of the bankrupt's estate. 
 
 With respect to powers of attorney, — it has been de- 
 termined, that a power of attorney, given hij the bankrupt 
 to receive money for him, is revoked by his bankruptcy (4); 
 and it would seem also, that a power of attorney given to 
 a bankrupt for the same purpose, would be equally re- 
 voked. (5) But when the power has been given by a 
 bankrupt to do a mere formal act, — such as to sign an 
 
 (1) Doe V. Britain, 2 B. & A. 95. 
 
 (2) Lofft,7l. 
 
 (3) Ante, 353. 
 
 (4) Hovill v.*Lethwaite, SEsp. 
 158. 
 
 (5) Hudson V Granger, 5 B. & 
 A. 31.
 
 Sect. 8.] AS TO THE REAL ESTATE. 369 
 
 indorsement upon the register of a ship when she returns 
 home, (which the bankrupt indeed might be compelled to do 
 himself", notwidistanding his bankruptcy) in such a case, the 
 power of attorney has been held not to be revoked. (1) 
 
 Section VIII. 
 
 0/ a Possibilitif^ or Contingent Interest. 
 
 The words ^^ possihililij of 2)r()fit" are not contained in 
 the new statute, as they were in the 5 Geo. 2. c. 30. s. 1., — 
 where this among other species of property, was enumer- 
 ated, which the bankrupt was compelled to give up in the 
 disclosure of his effects. But the provision of that statute 
 vested no power in the commissioners over this description 
 of the bankrupt's property, nor, indeed, gave any direction 
 as to what they were to assign — imposing only a particular 
 penalty on the bankrupt, for not disclosing his effects in 
 the manner there stated. The words " possibiUty of 
 profit," therefore, afforded nothing more than an argu- 
 ment, as to what the intent of the legislature was in those 
 provisions, that related to the assignment of the commis- 
 sioners of the bankrupt's general property — and on the 
 strength of which it has been decided, that all property of 
 the bankrupt, that was included under the words " pos- 
 sibility of profit," passed to the assignees. (2) Notwith- 
 standing those words are omitted in the present act, (for 
 which, however, there does not seem to be any particular 
 reason assigned) the learned author of it considers (3), 
 that from the general tenor and purport of the act — from 
 the provision at the conclusion of it, that it shall be con- 
 strued beneficially for creditors — and from the extensive 
 words (4) enabling the commissioners generally to deal with 
 
 (1) Dixo7i V. Eivart, Buck. 94. (2) Thorj^c v. Goodall, 1 Rose, 
 
 5 Meriv. 322. ; and sec ex parte 44. 
 
 Macdonnell, Buck. 599. Ex parte (3) Eden's B. L. 218. 
 
 Stewart, iG. &J. 344. (4) Section IS."?.
 
 364. 
 
 OF THE ASSIGNMENT [Ch. 11. Pt. 1. 
 
 A possi- 
 bility as- 
 signable. 
 
 PossihilUy. and assign the bankrupt's property, — that the construction 
 of the new statute will be as extensive in this respect, as if 
 those words had been retained in it. 
 
 But, as a possibility (coupled with an interest) is by law 
 devisable (1), it would seem to follow on that ground alone, 
 that it may be also assigned, with the other disposable 
 property of a bankrupt, for the benefit of his creditors. 
 And, where there was a devise to such of the children of 
 A. as should be living at her death — and A. had issue 
 (amongst others) B., who became a bankrupt, and got his 
 certificate allowed — after which A. died, — it was held, 
 that the assignees in this case were entitled to the bank- 
 rupt's interest ; for that he himself might in his mother's 
 lifetime have released such interest, — and that the commis- 
 sioners were therefore enabled to assign it. (2) 
 
 The possibility, however, must be such an interest as 
 can be assigned, or released. Therefore the mere possi- 
 bility, or expectancy^ of inheriting an estate generally as 
 heir at law — there being no persona designata — cannot be 
 assigned by the commissioners. So that if an estate, under 
 these circumstances, comes to the bankrupt after he has 
 obtained his certificate, neither the commissioners, nor the 
 assignees, have any control over it. (3) But, if the estate 
 descends to him before his certificate, it will, in that case, 
 pass to his assignees under the QUh section of the new 
 act. 
 
 A policy of insurance effected by a bankrupt on his own 
 life, passes to his assignees, however small the apparent 
 value of it may be. (4) 
 
 But not 
 a mere ex 
 pectancy 
 of inherit- 
 ing an 
 estate. 
 
 (1) Roe azm. Perry V.Jones, 1 H. 
 B. 30. Jones V. Roe, 3 T. R. 88. 
 
 (2) Higden v. Williamson, 5 P. 
 Wms. 132. 
 
 (3) Molk V. Frome, Ambl. 394. ; 
 
 and see Carleton v. Lcighton, 
 oMeriv. 671. 
 
 (4) Schondler v. Wacc, 1 Camp. 
 
 487.
 
 Sect. 9.] AS TO THE REAL ESTATE. 365 
 
 Section IX. 
 
 Of a voluntary Conveyance. 
 
 (And see post, 380. as to Personal Property fraudu- 
 lently delivered in contemplation of bankruptcy.) 
 
 By the 73d section of the new act, if any bankrupt, Convey- 
 bei)7g at the time insolvetit (1), shall (except upon the mar- .^"'^f l'^ 
 riage of any of his children, or for some valuable consider- without 
 ation), have conveyed, assigned, or transferred to any of consider- 
 his children, or any other person, any hereditaments, &c., (bein^ at 
 the commissioners have power to sell and dispose of the ^^^^ ^™^ 
 same; and such sale is declared to be valid against the void, 
 bankrupt, and such children and persons claiming under 
 him. 
 
 A voluntary settlement, or purchase, for a *isoife, made A volun- 
 
 after marriajie, has been held to be included in this power ^^^^ settle- 
 . , '^ . . , • n , '"^"t on a 
 
 given to the commissioners, upon the construction or the wife after 
 
 words *' children or any other per soji" — which are copied mairiage, 
 by the above section, from a former (2) act. And where a above 
 deed, by which the bankrupt conveyed his real estate to section, 
 trustees for the benefit of his wife and children, was ex- 
 pressed to be made "in consideration of 5s. and other 
 valuable considerations^^ — Lord Hardwicke said, that this 
 
 (l) These words were not in 1 Bro. 160. Glaister v. Hewer, 
 
 the 1 Jac. 1. c. 15. S.5., fromwhich 8 Ves. 195. 9 Ves. 12. llVes.377.) 
 
 this section is taken, and which though it was, of course, necessary, 
 
 appHed to all cases of a convey- as it is now, that he should have 
 
 ance without consideration, whe- been then a trader. Crisp v. Pratt, 
 
 ther the bankrupt was insolvent Cro. Car. 548. Lilly v. Osborne, 
 
 or not at the time. So that, before 3 P. Wms. 298. ; and see Picklock 
 
 the present statute, in order to v. Lyster, 2 M. &S. 371. Goss 
 
 make a transaction of this kind v. Neale, 5 Moore, 1 9. 
 void against creditors, it was not (2) 1 Jac. 1. c. 15. s. 5. Tucker 
 
 essential, that the party making the v. Cosh, Styles, 288. Glaister v. 
 
 conveyance should have been in- Hciver, 8 Ves. 195. 9 Ves. 12. 
 
 debted at the time ; {Fryer v. Flood, 1 1 Ves. 377.
 
 366 
 
 OF THE ASSIGNMENT [Ch.ll.Pt.l. 
 
 Volwitary 
 convey- 
 
 Deetlmade 
 by execu- 
 trix to ceS' 
 tui qtie 
 trusts, 
 when 
 cood. 
 
 Convey- 
 ance made 
 when party 
 not in- 
 debted, 
 not frau- 
 dulent. 
 
 Voluntary 
 convey- 
 ance good, 
 except 
 against 
 creditors. 
 
 did not oblige the Court to bold it, at all events, to be for a 
 valuable consideration, — and could at most only admit the 
 party into proof, that there were other valuable consider- 
 ations ; and he decreed that the trustees, in this case, should 
 convey to the assignees (1) of the bankrupt. 
 
 Where a deed was made by an executrix before an act 
 of bankruptcy, for securing out of the trust monies (in her 
 hands at the time of the deed) the fortunes of the cesitci que 
 trusts, — it was held good against creditors. (2) But where 
 an administrator executed a conveyance to two persons, 
 for the payment of 1500Z. each (given to them by the in- 
 testate) it was held fraudulent as against creditors, — unless 
 it could be proved, that the administrator had assets in his 
 hands belonging to the intestate, at the time of executing 
 the conveyance. (3) 
 
 If a trader make a voluntary conveyance, in consider- 
 ation of natural affection, and he be not indebted at the time 
 to any person, nor in treaty with any one for the sale of the 
 lands conveyed, — such a conveyance, it has been held, would 
 have no badge of fraud about it ; but if the party be indebted, 
 or in treaty at the time for the sale of the lands, it would then 
 be considered fraudulent. (4) A conveyance, also, made to 
 secure the debt of another person, is not fraudulent against 
 creditors. Therefore, where a father, at the request of his 
 son, executed a mortgage to secure a debt due from the 
 son to the mortgagee, — the Vice-Chancellor held, that this 
 was not a voluntary conveyance without consideration. (5) 
 
 A voluntary conveyance, though void as against the 
 creditors of a bankrupt, has been holden good for all other 
 purposes. (6) And a voluntary bond, being valid as be- 
 tween the parties, when it is surrendered by the obligee 
 for a substituted bond from the obligor, has been deter- 
 mined to be a good consideration for such substituted 
 
 (1) Walkerv. Burrows, 1 Atk. 93. 
 
 (2) Cock V. Goodfellow, 10 Mod. 
 490. 
 
 (3) Bateman's case, 1 Mod. 76. 
 
 (4) Style, 446. 
 
 (5) Ex parte Hcarn, Buck. 165. 
 (C) Ex parte Bell, 1 G. & J. 282.
 
 Sect. 10.] AS TO THE REAL ESTATE. 367 
 
 bond, even against creditors, — unless, indeed, the bond was 
 given with a fraudulent design to substitute a valid, for an 
 invalid, security. (1) 
 
 nees. 
 
 Section X. 
 Of an executortj or heneficial Contract. 
 
 There is some difficulty (from a review of the cases in Whether 
 the books) in determining what interest the assignees take ^ ^''^^" 
 in a covenant, or agreement, entered mto by a lessor with renew or 
 the bankrupt for the renewal, or the granting, of a lease. p'^"t a 
 In one case, it was held, that the assignees were not entitled passes to 
 to the specific performance of such an agreement (2) But the assig- 
 this appears to have been decided principally upon the 
 authority of another case, which has been since very much 
 impugned, — and in the report of which there are indeed 
 two wholly contradictory statements. In one of these (3), 
 it is laid down, that equity will not compel a lessor, who 
 had covenanted with a bankrupt to renew a lease, to 
 renew in favour of the assignees ; and in another report of 
 the same case (4), it is stated to have been holden, that 
 such a covenant x<oas assignable in law. In a subsequent 
 case (5), Mr. Justice Buller doubted the authority of the 
 first mentioned report of this case, and said he did not see 
 why a covenant for the renewal of a lease, of which a profit 
 might be made, might not be assigned ; and Mr. Justice 
 Heath said, that he thought the case cited from Vernon a 
 very strange one ; for, that a covenant to renew a lease ran 
 with the land. 
 
 (1) Expartei?«Tr?/, 19Ves.218. 1 Ch. Ca. 71. 1 Nels. 102. 1 Eq. 
 
 (2) Moyscs V. Li«/c, 2 Veni. 194. Ab. 55. 
 
 (3) Drake \. Mayor of Exeter, (4) Ibid. Freeman, 183. 
 
 (5) Smith V. Coffin, 2H.B.444.
 
 368 
 
 or THE ASSIGNMENT [Cll. 11. Pt. 1. 
 
 Executory 
 contract. 
 
 When 
 lease for 
 the per- 
 sonal ac- 
 commodo' 
 tion of 
 bankrupt. 
 
 When 
 bankrupt 
 
 Bankruptcy, indeed, does not seem to operate as an 
 actual discharge of such a contract ; though it may depend 
 upon many circumstances, whether a court of equity will 
 decree a specific performance of it in favour of the assig- 
 nees. ( I ) In one case it was said, that a specific perform- 
 ance would not be decreed, merely to give up the house to 
 the assignees. (2) And Sir William Grant, in a more 
 recent case, (in which, however, the point was not expressly 
 before him) doubts whether assignees could compel a 
 landlord, specifically to perform an agreement to grant 
 a lease to a (3) bankrupt — particularly where such an 
 agreement contained a stipulation, that the intended 
 lessee should not assign. Lord Loughborough also ob- 
 served in Brooke v. Hewitt, that it must be a very strong 
 case, that would induce the Court to carry into execution 
 an agreement between landlord and tenant, (the estate not 
 being executed at law,) where the person, who was to become 
 the tenant, had become a bankrupt ; and he added, that in 
 such a case, the Court would consider, whether it would 
 put any terms upon the assignees to make them do equity, 
 and dispose of the lease to a proper and responsible per- 
 son; and that, as the covenant of the bankrupt must, of 
 course, be of less value than if his bankruptcy had not inter- 
 vened, the assignees would be ordered to enter into all the 
 covenants. (4) 
 
 If, however, a party contract to grant a lease, merely for 
 ^Q personal accominodation of the bankrupt, then it is clear, 
 that the assignees are not entitled to the specific execution 
 of it; for to hold the contrary would be against the mani- 
 fest intention of the parties, as well as the justice of the 
 case, in that particular instance. (5) 
 
 With respect to any contract, which the bankrupt may 
 have entered into, for the purchase of any estate or interest 
 
 (1) Brooke y. Hewitt, ,'5Ves.253. 
 
 (2) Willingham v. Joyce, JjVes. 
 168. 
 
 (3) Weathercdlw.Geering, 12Ves. 
 515. 
 
 (4) 5Ves.253. 
 
 (5) Flood V. Finlay, 2 Ball & 
 B.9. 
 
 •, •<6.*
 
 Sect. 10.] AS TO THE REAL ESTATE. 369 
 
 in land, it is provided by the IQth section of the new act, Executory 
 
 that the vendor, or any person claiming under him, (if the ^°"^^^^'^ ' 
 
 assignees shall not, ujion being required, elect whether has en- 
 
 thev will abide bv and execute such agreement, or abandon *^''^" '"'° 
 
 I \ " I 1 • • I T 1 /-^i 11 ''*" agree- 
 
 the same) may apply by petition to tlie l^orcl Lhancellor; ment for 
 
 who may, thereupon, order the assignees to deliver up the the;);^/-- 
 , , • f 1 • 1 chase of 
 
 agreement, and the possession o\ the premises to tlie \^nds as- 
 vendor, or person claiming under him, or may make such signees 
 other order as he shall think fit. As to any agreement, whether to 
 therefore, of the bankrupt for the 'purchase of lands or tene- fulfil the 
 ments, — there can be no doubt, (from the wording of the ^^ j^^j 
 above section,) that it admits a right in the assignees to 
 enforce the performance of a contract of this description 
 against the vendor, if it is thought beneficial to the interests 
 of the creditors to do so. 
 
 The provision also, as to the election of the assignees in Assignees 
 the above section, appears to proceed upon the broad prin- ^^^J^^ ^^ 
 ciple, that they are entitled to the benefit o^ every covenant contract 
 or agreement of any description made with the bankrupt (1) 
 before his bankruptcy. Accordingly, it has been holden, 
 that lands previously articled to be sold by a bankrupt pass 
 to the assignees, together with the benefit of the contract, 
 and that they can compel the purchaser to a specific per- 
 formance (2); and unsatisfied judgments against the bank- 
 rupt, in such a case, have been also holden to be inoperative 
 against the title. So, where the bankrupt had made a con- 
 veyance of all his property to trustees for the benefit of 
 his creditors, under which the trustees contracted to sell 
 certain lands to the defendant — and afterwards filed a bill 
 against him for specific performance — but before answer, a 
 commission of bankruptcy was issued out against the bank- 
 rupt — upon which his assignees filed a supplemental bill to 
 enforce the contract; — it was held in this case, that though 
 the conveyance to the trustees was itself an act of bank- 
 
 (1) \r\6. see Whitworthw Davis, (2) Sharpe v. Roahde, 'J Rose, 
 1 V. & B. 145. Sloper v. Fish, 2 V. 1 92. 
 & B. 145. 
 
 B B
 
 370 OF THE ASSIGNMENT [Ch.ll. Pt.l. 
 
 Executory ruptcy, yet that the assignees might compel the performance 
 ^^[^|^_^' of the contract made under it. (I) It seems, too, that the 
 assignees may adopt any contract which the bankrupt 
 enters into even after the act of bankruptcy (if such con- 
 tract be beneficial to the estate), and may enforce it against 
 the person who has so contracted with the bankrupt. (2) 
 
 Section XL 
 
 Of the Estate of the Wife, and Property settled hy the 
 BanJcrupt on his Wife aiid Children. 
 
 Assignees The assignees are entitled to the same interest in all the 
 
 same title P''ope»'ty of the "iicife of the bankrupt, as he himself pos- 
 
 as the sessed at tiie time of his bankruptcy. For the sake of 
 
 lup . compendiousness, it is proposed to include in this section 
 
 the consideration of the law, as it affects both the Beal, and 
 
 Personal^ estate of the wife. 
 
 And first, as to her Real estate : — 
 
 If the bankrupt be seised of lands in right of his wife, the 
 assignees are entitled to them during the. coverture. (3) 
 As to the When the wife, however, is entitled to dower in her 
 dower. husband's lands, this right is not affected in any way by 
 the commissioners' assignment. (4) And a provision made 
 previous to the marriage in bar of dower, if precarious and 
 uncertain, does not bar the wife. As, where it was provided 
 by a settlement, that the wife should be entitled to such 
 personal estate as the husband 7night die jwssessed of, ac- 
 cording to the custom of London ; and the husband after- 
 wards became bankrupt, the wife was held entitled to 
 dower in this case against the claim of the assignees. (5) 
 But where a bankrupt, before he was seised in possession 
 
 (1) Goodwin v. Lightfiody, 1 Da- (3) 2 Com. Dig. Bankrupt D, 
 niell, 15.3, 11. 
 
 (2) Butler V, Carver, 2 Star. (4) Good,90. Stowe,163. 
 435. (5) Smith V. Smith, 5 Ves. 189,
 
 Sect. 11.] AS TO THE REAL PROPERTY. 371 
 
 pf lands, made a voluntary settlement of them after his mar- Wife's 
 riage, in trust for his wife and children, — it was held, that ^^ ^ ^' 
 the settlement, though void against creditors, subsisted for 
 the benefit of the wife and childreu in the event of any 
 surplus, and that the wife (never having been entitled to 
 dower in these lands, by reason that the settlement was 
 made before the husband was seised of any estate in pos- 
 session) could not claim dower against the creditors by 
 force of the bankruptcy. (1) 
 
 Where lands are devised in fee to the wife Joy her sc- Where 
 parate use, though there are no trustees appointed, yet the ^"^|* ^^^' 
 devised premises are not subject to the bankruptcy of her separate 
 husband; for the testator, having a power to devise the '"■^eoithQ 
 premises to trustees for the separate use of the wife, the 
 Court, in compliance with his declared intention, will sup- 
 ply the want of them, and make the husband trustee. And 
 in such a case, as the assignees (who claim under the 
 husband) can have no better right than he had himself, 
 the Court will order them to join in a conveyance to a 
 trustee, for the separate use of the wife. (2) In all cases. Where 
 
 indeed, where the bankrupt would, from the circumstances, ""*"?"" 
 
 _ * ... considered 
 
 be consitlered as a trustee for his wife, his assignees will a trustee 
 
 be held to be trustees in like manner. As where, in a '°.'' '"** . 
 
 . wite, assig- 
 
 marriage settlement, an estate was mtended to be settled to nees will 
 
 the separate use of the wife during life, but by mistake was ^^. ^° ^^^^' 
 
 wise, 
 limited to the use of the husband for life — and the husband 
 
 gave a note under his hand to the trustee, that the wife 
 
 should take the estate to her separate use according to the 
 
 original intention of the parties; — the Court held, in this 
 
 case, that the assignees of the husband must be considered 
 
 as trustees for the wife, as they took the estate subject 
 
 to the same ristht as she was entitled to against the 
 
 bankrupt. (3) And a Court of Equity will in every case 
 
 supply legal defects in marriage articles executed by a 
 
 (1 ) Ex parte Bell, 1 G. & J. 283. 31 G. KirJc v. PauUn, 7 Vin. Ab. 95. ; 
 
 (2) Bannct v. Davis, 2 P. Wins, and see post, 577. et seq. 
 
 (5) Ti/rreHv. HD;pe,2Aik.537, 
 
 BB 2
 
 372 
 
 OF THE ASSIGNMENT [Ch.ll.Pt.l. 
 
 Wife's 
 estate. 
 
 Where 
 
 settlement 
 
 good 
 
 against 
 
 assignees. 
 
 Where 
 not bind- 
 ing on 
 them. 
 
 Wife en- 
 titled to 
 proper 
 mainte- 
 nance out 
 of her own 
 property. 
 
 trader, and compel assignees to carry the articles into exe- 
 cution. (1) Thus, where a settlement was by lease and re- 
 lease, and the lease for a year was lost, — the settlement was 
 nevertheless held good against the assignees of the husband ; 
 as the release amounted to a covenant to stand seised. (2) 
 
 Where the wife's fortune was by articles before marriage 
 settled to the use of the bankrupt for life — but if he failed 
 in the world, the trustees were then not to pay the pro- 
 ceeds to him, but apply it to the separate maintenance of 
 the wife and children, — the Court held, that the settlement 
 was good against the assignees, it not being a provision 
 out of the bankrupt's estate, but the settlement of her own 
 property. (3) But where the wife's estate was by settle- 
 ment vested in trustees, to assign after the marriage a part 
 to the husband, and in the event of her dying in his life- 
 time without issue, then to be divided in a particular mode 
 — and the husband covenanted, that in that event, he would 
 within three months after her decease transfer 500/. to the 
 trustees, for the sole use of her next of kin — but he became 
 a bankrupt in her lifetime; — it was held, in this case, that 
 the 500/. (so covenanted to be transferred) being only con- 
 tingent at the time of the bankruptcy, the whole of the 
 trust fund vested in the assignees — and that they were not 
 subject to any equity for the payment of the 500/. (4) 
 
 The wife of a bankrupt has, in equity, a right in all 
 cases to an adequate provision out of her own property. 
 Therefore, where such property cannot be got at by the 
 assignees without the intervention of a Court of Equity, the 
 Court will compel them to make a competent settlement 
 upon her (5), before it will permit them to get possession of 
 
 (1) sAtk. 557. Broum v. Jones, 
 1 Atk.188. Jordnnv. Savage, 2 Eq. 
 Ca. Ab. 102. Bosvil v. Brander, 
 1 P. Wins. 459. 
 
 (2) Brown v. Jones, supra. 
 
 (3) Jjockyerv. Savage, 2 Str. 946. 
 {4)Brandon\,Brandon,oS'WSL\\it, 
 
 S27. 
 
 (5) Parker v. DykeSf Davis, 281 . 
 
 Holland v. Culliford, 2 Vern. 662. 
 Jacobson v. Williams, 1 P. Wms. 
 382. Bosvil V. Brander, ibid. 458. 
 Grey v. Kentish, ibid. 280. Jcwson 
 V. Moulson, 2Atk. 417. Worrall 
 V. Marlar, cited I P. Wms. 459. 
 Cox, 155. 2 Dick. 647. Pryor V. 
 Hill, 4 Bro. \^Q. Watson v. Mew 
 crtU, cited 1 P. Wms. 458. Sad^
 
 Sect. 11.] AS TO THE REAL PROPERTY. 373 
 
 the property, — unless ihe wife be otherwise properly pro- Wife's 
 vided for. And though a settlement has been made, pre- ^^^^'^- 
 vioiis to the marriage, of part of the wife's property to her 
 separate use, it does not bar her claim to a further settle- 
 ment out of newly acquired property. (1) The practice in 
 these cases has been, to refer it to the Master to settle what 
 is a proper maintenance, — having regard, on the one hand, 
 to any prior settlement of other property made by the 
 husband — and on the other, to any other property pos- 
 sessed by the husband in right of his wife. (2) This equity 
 of the wife (to a provision out of her property) attaches on 
 the filing of the bill, which gives a Court of Equity juris- 
 diction over the property. (3) And where the property is 
 a subject of equitable cognizance, it does not seem to be 
 material, whether the wife, or the husband, or his repre- 
 sentatives, or general assignees, come for the aid of the 
 Court. (4?) If the entire property, or that portion of it 
 which exists at the time of her husband's bankruptcy, is not 
 more than sufficient to maintain her, the Court has in some 
 cases ordered her to receive the whole for her separate 
 use, — as in the case of an annuity, to which she is entitled 
 at the time of the bankruptcy. (5) But where it is more 
 than sufficient for her maintenance, in no case will the 
 whole be given (6) ; but the property, in that event, has 
 been frequently divided equally between the wife and the 
 assignees. (7) 
 
 dingtonv. Kinsman, iBro. 44. Free- J. 64.; and see Macaiday v. Phin 
 
 manv.Parslei/, sYes. 421. Pringle lips, 4 Yes. 15. Murray v. hord 
 
 V. Hodgson, ibid. 617. Brown v. Elibank, loVes. 90. 
 
 C/arA:, ibid. 166. Lumb \ . Milnes, (4) See Mr. Cox's note, 1 P. 
 
 5Ves.517. Har}-ison\. Buckle, 1 Str. Wnis, 459. Loj^d Klibank v. Mon- 
 
 238. Adams v. Peirce, 5 P. Wnis. tolieu, 5 Ves. 757. 1 Roper Husb. 
 
 12. Ex parte Beilby, 1 G. & J. & W. 257. 
 
 167. Ex parte Hall, ibid. Ca7'r (5) Ex parte Cot/segame, 1 C. B. 
 
 V. Tffy/or, 10 Ves. 574. Bassivi v. L. 265. 1 Atk. 192. Oswellv.Pro- 
 
 Serra, 5 Meriv. 674. bert, 2 Ves. 680. 
 
 (1) Burdon v. Dean, 2 Ves. 607. (6) Wright v. Morley, 11 Ves. 20. 
 
 (2) Green v. Otte, 1 Sim. & St. Beresford v. Hobson, 1 Mad. 362. 
 250. Green v. Otte, supra. 
 
 , (3) Steinmetz v Haitian, 1 G. & (7) Worrall v. Marlar, Browne 
 
 BBS
 
 374 
 
 OI? THE ASSIGNMENT [Ch. 11. Pt. L 
 
 Wife's 
 estate. 
 
 But this 
 only a per- 
 sonal right 
 of the 
 wife's, and 
 not ex- 
 tended to 
 children. 
 
 When as- 
 signees can 
 get the 
 property 
 without 
 the aid of 
 a court of 
 equity. 
 
 It seems, however, that the Court of Chancery will not, 
 ajtcr the death of the "wife, extend this equity for a provision 
 out of her estate to the issue of the marriage, where 710 claim 
 has been made by thett//^ during her lifetime ; for the right 
 to such a provision is personal to the wife ; — and the Court 
 acknowledges no oris,inal title in the children — who can 
 claim only that provision (1), which the wife tiiinks fit to 
 secure to herself. She may, even at any time before the 
 execution of the settlement (by consent in court) waive the 
 settlement, and defeat the children. (2) But if she do not 
 waive it, and the Court has once jurisdiction over the pro- 
 perty by the filing of the bill (either by the wife, or by any 
 other person (3) ), the intended settlement will in that case, 
 upon her death, enure for the benefit of her children. For an 
 actual settlement is not necessary to give title to the children 
 after the death of the wife : as, if there be a decree in a 
 cause, referring it to the Master to approve of a proper 
 setdement for the wife and children, and the wife die before 
 any proceeding under the decree, the settlement must still 
 be made for the children. (4) And it has lately been de- 
 cided, that the filing of a bill b}^ an executor, though the 
 wife dies before answer, is sufficient to entitle the children 
 to the benefit of the settlement. (5) 
 
 If the assignees, however, can get possession of the wife's 
 property without calling for the interposition of a Court of 
 Equity, it has been considered doubtful, whether the Court 
 would, in such a case, interfere to assist the wife. (6) But 
 the Court of Chancery has frequently granted injunctions, 
 to stay proceedings of the husband in the Ecclesiastical 
 
 V. Clarke, Carr v. Taylor, supra. 
 Goose V. Davis, cit, 1 Mad. 375. 
 Ex parte Newliavi, 1 G.& J. 40. 
 
 (1) Hearle v. Greoiban/c, 3 Atk. 
 717. Scriven v. Tuhlcy, Amb. 509. 
 2 Eden, 557. Lloyd v. Williams, 
 1 Mad. 455. 
 
 (2) Murray v. Lord Elibanlc, 
 lOVes. 88. 91. 
 
 (3) i G. & J. 64. 
 
 (4) Ibid. Martin v. Mitclicll, cit. 
 10 Ves. 89. Rotue v. Jaclcson, 
 2 Dick, 604. 
 
 (5) Steinmetzv. Halthin, supra. 
 
 (6) Adams v. Pierce, 5 P. Wms. 
 11. Willats V. Cay, 2 Atk. 67. 
 Jcwson V. Moulson, 2 Atk. 420. 
 Milner v. Colmer, 2 P. Wms. 641. 
 Winchv.Page, Bunb. 80. Prcc.Ch. 
 548.
 
 Sect. 1].] AS TO THE REAL PROPERTY. 375 
 
 Court, for the recovery of a legacy to the wife, until a Wife's 
 proper settlement has been made. ( 1 ) esiaic. 
 
 Where a settlement is nuade of the husband's property When 
 upon the wife before marriage, it will be good against the ^^"'^'"^"'^ 
 assignees, — for marriage itself is a consideration ; and it is band's 
 equally good, if made after marriage, provided it be upon ^^"'.'^'good 
 payment of money as a portion — or even ni consideration of assignees. 
 an agreement to pay money, if it be afterwards paid pur- 
 suant to the agreement, (2) And if a bankrupt, previous 
 to his marriage, covenant to settle specific lands upon his 
 wife, and die without performing the covenant, the Court 
 will compel the assignees to carry the (3) settlement into 
 execution. 
 
 Where a man, who is not a trader, and not indebted at Settle- 
 
 /7/e if/w^, purchases lands and settles them to himself, and "i^"*^ by a 
 
 party not 
 his wife and children — and afterwards enters into trade and a trader, 
 
 becomes bankrupt — the settlement, in such a case, is ffood ?"'' ""*•, 
 1 1- ,.\ -r. 1 1 , indebted, 
 
 against the creditors, (^j hiut, where a purchase was made aood. 
 
 by a trader idio xoas indebted, at the time, in the joint names Contra, 
 
 of himself and his wife, and he afterwards became a bank- ^^'^ere 
 
 , .^ . , . ,, [. , . indebted, 
 
 rupt, — the wire, in this case, (berore the new statute) was 
 
 holden not entitled to any interest in the property. (5) 
 And so, where the purchase was made even with the wife's 
 money, if it was previously received by him, and disposable 
 as his own, and the receipt of the money was not con- 
 nected with the purchase, nor the husband bound by any 
 agreement with a trustee. (6) 
 
 But now it is apprehended that, to bar the claims of gut now 
 the wife, the party must not only be indebted, but must l""st be 
 also be insolvent at the time of the purchase, according to .^\^q at 'the 
 the construction of the iSd section of the new statute, — time. 
 
 ( 1 ) Gardner v. Walker, 1 Str. 503. (4) Crisp v, Pratt, Cro. Cai*. 540. 
 Jewson V. Moulson, supra. Lillj/ v. Osborn, 2 P. Wins. 298. 
 
 (2) Brown v. Jones, supra, 1 C. (5) Glaister v. Hewer, 8 Ves. 
 B. L. 2G2, 195. Tucker v. Cosh, Style, 289. ; 
 
 (5) Jordan v. Savage, 2 Eq. Ca. and see ante, 365. 
 \b.l02 (6) 8 Ves, 195. 
 
 B B 4<
 
 316 
 
 OF THE ASSIGNMENT. [Ch. 11. Pt. I. 
 
 Wife's 
 estate. 
 
 Where a 
 
 covenant 
 
 in deed of 
 
 separation 
 
 good 
 
 against 
 
 creditors. 
 
 which makes a material alteration in the law in tliis re- 
 spect. (1) And it would seem also, from the preceding 
 cases (2), that where the purchase is made with the "tSjiJe's 
 money, she would have an equity to some sort of a pro- 
 vision. 
 
 Where, by a deed of separation, the bankrupt had cove- 
 nanted with a trustee for his wife, (in consideration of being 
 indemnified from all debts and engagements, that might be 
 contracted by her during the separation) to release his re- 
 mainder in fee in certain estates (of which he was tenant 
 for life), to certain uses for the benefit of the wife, — it was 
 held, that such a covenant being made with a third party 
 was binding in equity, and that it might be supported 
 against creditors, by the consideration of indemnity against 
 the wife's debts and engagements. (3) 
 
 2. As to the Personal Estate of the Wife. 
 
 Chose in 
 action. 
 
 A chose in action, to which the wife was entitled before 
 marriage, passes to the assignees by the assignment, as 
 well as all debts due to her diim sola (4) ; and also stock in 
 the public funds, which she was possessed of at the time of 
 Mortgage, her marriage. {5) So, where the wife was a mortgagee in 
 fee before marriage, the assignees will be entitled to the 
 mortgage, for the right to the debt is vested in the as- 
 signees; and though the legal estate of the inheritance of 
 the lands in mortgage continues in the wife, yet this is no 
 more than a trust for the assignees, — in the same manner as 
 where a mortgagee in fee dies, the mortgage money belongs 
 to the executor, though the heir takes the legal estate by 
 descent, — but with no other title than that of a trustee for 
 the executor. (6) 
 
 (1) See ante, 565. (5) Pringle v. Hodgson, sVes. 
 
 (2) Ante, 575. 617. 
 
 (5) Worral v. Jacobs, 5 Meriv. (6) BosvUy. Brander, iP.Wras. 
 256. 458. 
 
 (4) Miles V. Williams, 1 P.Wnis. 
 249.
 
 Sect. 11.] OF THE ASSIGNMENT. 377 
 
 It has been holden in some cases, that tliough the bank- JVife's 
 
 rupt die, before a c/iose hi action (due to the wife diim sola) ^"'^ ^' 
 
 is reduced into possession, either by himselfj or the as- Whether 
 
 siffnees, — vet that the bankruptcy of the husband, and the *^"°*^ '" 
 
 ". " . ,1 action 
 
 assignment to the assignees, would amount to such a virtual survives 
 
 reducing into possession, as would be sufficient to bar the ^° ^'^'^' 
 
 wife's contingency of survivorship. (!) But in subsecjuent 
 
 cases the contrary opinion has prevailed ; — in one of which 
 
 Sir W. Grant in an able judgment deciiied, that the wife was 
 
 entitled by right of survivorship to a chose in action^ under 
 
 these circumstances, against the claims of the assignees. (2) 
 
 And in a more recent case, where the wife had a reversionary 
 
 interest in stock, and the husband took the benefit of the 
 
 insolvent act — after which the person, on whose death the 
 
 wife was to take, died — and then the husband died, without 
 
 having done any act, either by himself or his assignees, to 
 
 reduce the stock into possession, — it was held, that the 
 
 stock survived to the wife. (3) 
 
 If a sum of money be bequeathed by a testator, in trust When wife 
 
 for the wife of a bankrupt, to be laid out and invested in a ^"^I'^'^d to 
 
 property 
 purchase for her " sole and separate use" and to be settled bequeath- 
 after her death upon her children, — the commissioners ^d to her. 
 cannot assign it ; for it is not, in such a case, liable to the 
 creditors of the husband. (4) So, if a legacy be left to the 
 wife, directing " her receipt to he a sii^cient discharge" to the 
 executors, — that is, equivalent with saying to her sole and 
 separate use. (5) So also a bequest, " ivhenever she shall 
 demand or require the same (6) ;" or, " in trust to pay the 
 annual produce into her proper ha}ids{7);" or a legacy 
 
 (1) 1 P. Wms. 458. Pringle \. \. Phipps, I Eden, 502. Mi/iicr v. 
 Hodgson, supra. Milncr,3T. R 627. 
 
 (2) Mitford V. Mitford, 9 Ves. (4) Vandenanker v. Desbrough, 
 87. 2 Vern. 96. Per Lord Hardwicke, 
 
 (3) Hornsby v. Lee, 2 Mad. 16. 3 Atk. 709. Bennet v. Davis, 2 P. 
 As to what acts of the husband Wins. 316. 
 
 amount to a reduction into pos- (5) Lee v. Piieaujc, 3 Bro. 381. 
 
 session of a wife's chases in action, (6) Dixon w Olmius, 2 Cox, 414. 
 
 see Wildman v. Wildman, 9 Ves. 174. (7) Hartley v. Hurle, 5 Ves. 545. 
 Nash V, Nash, 2 Mad. 153. Forbes
 
 378 
 
 OF THE ASSIGNMENT. [Ch.U. Pt. 1. 
 
 Wife's 
 estate. 
 
 Where 
 
 assignees 
 
 entitled. 
 
 " to be vested in trustees, the income to be for her sole use 
 and henejit [\) f or a limitation in a settlement " for her 
 oty« sole use, benefit, and disposition (2);" — have all been 
 holden to give an estate to the wife, which does not pass to 
 the assignees. 
 
 But a clear intention of the testator must appear in the 
 language of the will, that the bequest is for her separate 
 use, in order to prevent the husband's right from attaching; 
 for a mere bequest to a married woman, " to and for her oww 
 use and benefit," has been held not to amount to a separate 
 gift to her (3) ; and a mere trust also to "pay the interest to her 
 for life" has been determined not to be sufficient (4), — not- 
 withstanding the property is bequeathed to the husband 
 jointly with another trustee " in trust for the 'wife." (5) Whe- 
 ther the gift of a particular fund to the hnsband alone, in trust 
 for the wife, would be intenxled as a gift to her separate use, 
 and a Court of Equity would prevent him from exercising his 
 marital power, in prejudice of the trust, — was a question 
 propounded in the last case by the Vice-Chancellor, but 
 not determined. And, where there was a bequest of the 
 interest of personal property between the wife and her 
 brother ; and at her death one half of the principal to go 
 to her children, and her husband by no 7ncans to have any 
 part, — even, in this case, the life interest was holden not 
 to be to her separate use, on the ground, that the excluding 
 words in the bequest referred only to the last antecedent, 
 viz. the principal. (6) But wherever the assignees may be 
 entitled in right of the bankrupt to the property thus left 
 to the wife, they will be compelled, in every case, to make 
 a provision for her, before they can avail themselves of this 
 interest taken by the bankrupt. (7) The share apportioned 
 to the wife in these cases is generally one half of the 
 legacy ; which, if she has children, will be ordered to be 
 
 (1) Adamson v. Armitage, G. 
 Coop. 285. 
 
 (2) Ex parte Ray, 1 Mad. 199. 
 
 (3) Wills V. Sayers, 4 Mad. 409. 
 Rdberfs v. Spicer, 5 Mad. 491. 
 
 (4) Lumb V. Milnes, 5 Ves. 517.- 
 
 (5) Ex parte Beilbt/, 1 G. & J. 
 167. 
 
 (6) Brown v. Clark, 3 Ves. 166. 
 
 (7) Ibid.; and see ante, 572.
 
 Sect. 11.] OF THE ASSIGNMENT. Bf9 
 
 settled on her for life, with remainder to the issue of the Wife's 
 
 , , X estate. 
 
 marriage. (1; 
 
 A divorce obtained by the wife after her husband's bank- A divorce 
 
 ruptcy, does not entitle her in equity to the whole of a '"fi!|"°the 
 
 fund previously be(|iieathed to her, but which does not wife to the 
 
 come into possession until after the bankruptcy, — although ^^" .^ °^ ^ 
 
 no settlement may have been made upon her at her mar- viously be- 
 
 riage, and her husband then received a sum of money as a queatned. 
 
 portion with her. But the Court in such a case will refer 
 
 it to the Master, to approve of a proper settlement upon 
 
 the wife, and direct him to have regard to the extent of 
 
 the fortune received by the husband in her right. (2) 
 
 The property of a, feme covert sole trader, according to Feme 
 the custom of the city of London, does not pass to the t^ad^Jr^"^ 
 assignees (3) of the husband. And where a woman before 
 marriage, with the consent of her intended husband, con- 
 veyed all her stock in trade and furniture to trustees, to 
 enable her to carry on her business separately — and the 
 husband did not intermeddle with them, — it was held, 
 that such effects, though fluctuating, were not assignable by 
 the commissioners ; for that the husband had not, in such 
 a case, the order and disposition of the property with the 
 consent of the true owner; — the trustees beinor the legal 
 owners, and they having given no consent for that purpose; 
 and the wife's possession under these circumstances was 
 held to be no evidence of fraud, — for she was considered 
 but the agent of the trustees. (4') 
 
 But where goods, the property of a widow and her Where 
 
 children, were upon her second marriao;e assigned to trus- ^^ * 
 ' ^ . goods as- 
 
 tees, in trust to suffer the husband to enjoy them, on con- signed to 
 dition that he should pay to the trustees (for the use of the f'*"*^^^*'. 
 children) 800^., by yearly instalments of 100/., irom July possession 
 
 (1) sVes. 166. ; and Ex parte (.3) havie v. PhiUips, 3 Burr. 
 O'FarraU, 1 G. & J. 345. 1 776. 
 
 (2) Green v. Otte, 1 Sim. & S. (4) Jarman v. WooUoton, 3 T. 
 250. R. 6 1 8 . ; and see Hasclinlon v. Gill, 
 
 ibid. 620. note (a).
 
 380 
 
 OF THE ASSIGNMENT. [Ch.ll. Pt. 1. 
 
 Wife's 
 estate. 
 
 of the 
 husband. 
 
 As to di- 
 vidends of 
 stock re- 
 ceived by 
 trustees 
 under a 
 settle- 
 ment. 
 
 Proceeds 
 of bank- 
 rupt's 
 stock 
 agreed to 
 be settled 
 before 
 marriage, 
 assignees 
 not en- 
 titled to. 
 
 1789 — and he continued in possession of them till 1797) 
 having paid only 250/. — and the cZay before his hankruptci/, 
 the trustees repossessed themselves of the goods ; — the 
 Court held, that this was fraudulent against creditors, and 
 that the assignees were entitled to the goods. (1) 
 
 Where the bankrupt is, under a marriage settlement, 
 entitled to receive the dividends of stock for his life, the 
 assignees in this case become entitled to them during the 
 life of the bankrupt ; and where the trustees under the 
 settlement received the dividends after the bankruptcy, 
 some of which they paid over to the wife of the bankrupt, 
 it was held that the assignees might recover the total 
 amount of such dividends from the trustees. (2) 
 
 A bankrupt before his marriage agreed by parol, to settle 
 all his stock on his intended wife — which stock (it appeared 
 afterwards) amounted then to 450/., 3 per cents. — but in 
 the articles executed in pursuance of such agreement before 
 the marriage, and in the settlement executed afterwards, 
 the stock was stated to be only 340/. in amount. This 
 was clearly proved to have been a mistake, occasioned by 
 the bankrupt having stated that amount as the value of 
 the stock, and the subscribing witness having inserted it as 
 the gross amount of the stock itself. After the act of 
 bankruptcy the mistake was rectified, by altering the sum 
 in the articles and settlement ; and those instruments were 
 then re-executed by the bankrupt and his wife and the 
 trustees. Before the bankruptcy the whole stock was 
 sold out by the bankrupt, and the amount paid to the trus- 
 tees. Under these circumstances, it was held by the Court 
 of King's Bench, that, however such an alteration might 
 avoid the instruments — if done with the consent of all the 
 parties interested — yet, inasmuch as one of the parties 
 {{he feme covert) was incapable of giving such consent, and 
 as equity would probably set up again the destroyed instru- 
 
 (1) Darby v. Smith, 8 T. R. 82. (2) Allen\. Impett, 8 Taunt. 263.
 
 Sect. 11.] OF THE ASSIGNMENT. 381 
 
 ments in her favor, tlie trustees (who had received the IVi/e's 
 money when they existed in a valid form) were entitled ^^ ° ^- 
 to hold the value of the 34-0/. stock, subject to the purposes 
 of the trust, and not for the benefit of the bankrupt's 
 estate ; but that the surplus beyond that amount, at law, 
 belonged to the assignees, — by reason that the agreement be- 
 fore marriage for the settlement of the 'whole stock was not 
 evidenced bi/ W)iti?ig pursuant to the statute of frauds (1), 
 and was, under the circumstances, the subject only of equi- 
 table jurisdiction. (2) 
 
 (l) 29 Car. 2, c. 3. s. 4. (2) Shatv v. Jakeman, 4 East, 
 
 201.
 
 382 OF THE ASSIGNMENT [Ch.U. Pt.2. 
 
 PART II. 
 
 OF THE ASSIGNMENT, AS IT AFFECTS THE TERSONAL PRO- 
 PERTY OF THE BANKRUPT. 
 
 Sect. 1. Of the Personal Property in gcna^aL 
 2. Of Debts, and Choses in Action. 
 S. Of Leases, and Annuities, and. herein of For' 
 
 feitures upon Alienation. 
 4«. Of Property ABROAD. 
 
 5. Of Property in the Possession, Ordh', or Dis- 
 
 position of the Banh-upt as BEFUTED OWNER. 
 
 1. What THINGS are mthin the Statute. 
 
 2. What POSSESSION is mthin the Statute. 
 
 3. Possession as Factor, Banker, or Broker. 
 
 4. Possession as Trustee, Executor, or Ad- 
 
 mijiistrator. 
 
 6. Cf Property fraudulently delivered in contemplation 
 
 of Bankruptcy. 
 
 7. Of Goods in transitu, and herein of the Right of 
 
 Stoppage. 
 
 8. Of Goods sent, hut not accepted ; and of Goods 
 
 ordered, hid not delivered. 
 
 9. Of Goods sidyect to a LIEN. 
 \0. Of the Claims of the Crotson. 
 
 (See also post, " Relation,^' " Actions." And as to the operation of 
 the assignment upon the joint property of a partnership, under a se- 
 parate commission against one or more of the partners, see post, title 
 " Partners") 
 
 Section I. 
 
 Of the Personal Property in general. 
 
 By section 63. of the new act, the Commissioners may 
 assign to the Assignees, for the benefit of the creditors of
 
 Sect. 1.] AS TO PERSONAL PROPERTY. 389 
 
 the bankrupt, all the fre&ent and future personal estate of Personal 
 
 the bankrupt, wheresoever the same may be found or V^P^^'^y 
 
 1 • 1 1 tn general. 
 known, and all property which he may purchase, or which 
 
 may revert, descend, be devised, or bequeathed, or come to 
 
 him, before he shall have obtained his certificate. 
 
 All propert}', therefore, of every description, which accrues 
 to the bankrupt before he obtains his certi^cate, passes to the 
 assignees. And this was indeed declared to be the law be- 
 fore the new act, — so that, even in a case where a lottery 
 ticket was given to the bankrupt by a creditor, who had 
 signed his certificate, as a mark of approbation of his con- 
 duct, and the ticket happened to be drawn a prize before 
 the actual allowance of the certificate, the proceeds were 
 claimed and shared by the creditors. (1) 
 
 All property, too, which other persons stand possessed of 
 in trust for the bankrupt, passes to the assignees, — as a 
 bond to pay a sum of money to the obligee, iii trust for 
 the bankrupt. (2) 
 
 The assignment is now exempted from stamp duty (3), Assign- 
 but it is required to be entered of record (4) at the bank- ™ent. 
 rupt office; otherwise it is not receivable as evidence in 
 any court of justice. 
 
 By section 80. of the new act, if the bankrupt shall Commis- 
 
 have any e;overnment stock, funds, or a7imiities, or any ^'o"^'"'' 
 
 ot the stock ol any pubhc company, either in JLngland, stock to 
 
 Scotland, or Ireland, standing in his name in his own ^^ trans- 
 
 . . . fcrrGci to 
 
 right, the commissioners may, by writing under their hands, assignees. 
 
 order the same to be transferred into the name of the 
 
 assignees, and all dividends to be paid to them. This 
 
 clause is an extension of the provision made in this respect 
 
 by the 36 G. 3. c. 90., by which government stock was 
 
 made transferable to the assignees upoyi petition to the 
 
 Lord Chancellor; but as the transfer may be made now 
 
 (1) Per Lord K. ; 7 T. R. 296. (3) Section 98. 
 aud see post, 386. (4) See Section 96. 
 
 (2) Gerard v, ^y»jer, Palm. 505.
 
 384. 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Personal 
 property 
 in general. 
 
 Where 
 stock 
 
 claimed by 
 other 
 parties, or- 
 dered to 
 be trans- 
 ferred into 
 name of 
 Account- 
 ant-Ge- 
 neral. 
 
 Wearing 
 apparel. 
 
 Penalty 
 on persons 
 concealing 
 bankrupt's 
 effects. 
 
 Reward to 
 persons 
 discover- 
 ing them. 
 
 by the order of the commissioners^ the expense of applying 
 by petition will be saved. 
 
 Certain stock standing in the name of a bankrupt, the 
 dividends of which had not been claimed, was (under the 
 56 G. 3. c. 60.) transferred to the commissioners for the 
 reduction of the national debt. The assignees of the bank- 
 rupt, by petition under the act, claimed the stock as part 
 of the bankrupt's effects; and it was also claimed by an- 
 other person, who insisted that the bankrupt was merely a 
 trustee for him. Under these circumstances, a reference 
 was directed to the Master to ascertain whose stock it was ; 
 and in the mean time the stock was directed to be trans- 
 ferred into the name of the Accountant-General. (1) 
 
 The assignees are not entitled to detain from the bank- 
 rupt any part of his wearing apparel^ on the ground of its 
 being unnecessary; for the bankrupt himself is to determine 
 whether it is necessary or not, as he does so at the risk of 
 an indictment for felony. (2) 
 
 By sectio7i 120. of the new act, any person wilfully con- 
 cealing any real or personal estate of the bankrupt, who 
 shall not within forty-two days after the issuing of the com- 
 mission discover it to the commissioners or assignees, is 
 liable to a penalty of 100/. and double the value of the 
 estate so concealed ; and any person who shall, after the 
 time allowed to the bankrupt to surrender, virtually dis- 
 cover to the commissioners or assignees any part of the 
 bankrupt's estate not before come to the knowledge of the 
 assignees, is entitled to an allowance of 5l. per cent., and 
 such further reward as the major part in value of the cre- 
 ditors present at any meeting called for that purpose shall 
 direct. 
 
 (1) Ex parte Gillet. Ex parte (2) Ex parte Ross, 1 Rose, 33. 
 Bacon, 3 Mad. 2S. 17Ves.374.
 
 Sect. 2.] AS TO PERSONAL PROPERTY. 3$B 
 
 Section II. 
 O/" Debts and Choses in Action. 
 
 By the 63^ section the commissioners may also assif^n All debts 
 
 all debts due, or to be due, to the bankrupt, wheresoever ^^^^ '" 
 
 . assignees. 
 
 the same may be found or known ; and the assignment will 
 
 vest the same in the assignees as fully, as if the assurance 
 (whereby any of the debts are secured) had been made to 
 the assignees themselves. And after the assignment, neither 
 the bankrupt, nor any person claiming through or under 
 him, can recover any of such debts, nor make any release 
 or discharge of them ; neither can any of them be attached 
 (as the debt of the bankrupt) according to the custom of the 
 city of London, or otherwise. And the assignees are de- 
 clared to have the like remedy to recover such debts in 
 their own names, as the bankrupt himself might have had, 
 if he had not been adjudged bankrupt. 
 
 A bond given to pay a sum of money to the obligee, in Bond to a 
 trust for the bankrupt, may be also assigned by the com- t'^^^ee- 
 missioners. (1) 
 
 Where a heriot^ relief. Sec. are due to the bankrupt, they Heriot. 
 also pass by the commissioners' assignment. (2) 
 
 So, a legacj/, given to the bankrupt before he obtains his A legacy 
 certificate, passes to the assignees ; and, though it is given lowance of 
 to him after his certificate has been signed by the creditors certificate, 
 and the commissioners, yet if it is before the allowance of 
 the certificate by the Lord Chancellor, it equally belongs 
 to the assignees (3) ; and this, notwithstanding the allow- 
 ance is delayed by an unfounded petition to stay it, — unless 
 indeed the petition was presented with that express ob- 
 ject. (4) Where, however, the bankrupt owed the testator 
 a larger sum of money than the amount of the legacy, the 
 
 (1) Gerard \. Ai/lmer, P'cdm. 505. (5) 2\idway v. Bourne, 2 Burr. 
 
 (2) 3 Com. Dig. Bankrupt, (D. 716. 
 
 16.) (4) Ex parte Ansell, 19Ves. 208. 
 
 c c
 
 386 
 
 OF THE ASSIGNMENT [Ch.ll. Pt. 2. 
 
 Choscs in 
 action. 
 
 Bill depo- 
 sited with 
 third per- 
 son. 
 
 Rights of 
 action. 
 
 Money 
 lost at 
 play. 
 
 Money 
 paid on a 
 corrupt 
 agreement. 
 
 When 
 
 right of 
 action 
 does not 
 pass. 
 
 assignees, in this case, were held not entitled to any part of 
 the legacy, as against the executors. ( 1 ) 
 
 A bill of exchange deposited by the bankrupt with a 
 third person, for the specific j^urpose of raising money on it, 
 though such person advances some money on the bill, 
 passes to the assignees ; and they are entitled to recover it, 
 after tendering to him the money he had so advanced, — 
 though a general balance remained due to him from the 
 bankrupt. (2) 
 
 All rig/its of action likewise pass to the assignees; there- 
 fore, where a bankrupt before his bankruptcy lost his 
 money at hazard, his assignees were held entitled to re- 
 cover it back (under the 9 Ann. c. 14.) in an action against 
 the winner. (3) 
 
 So, money paid by the bankrupt, on a corrupt and illegal 
 agreement, may be recovered back by the assignees from 
 the person to whom it is paid. But, where money was paid 
 to a prosecutor, in consideration of putting off the trial of 
 the bankrupt for perjury, for which he was not then pre- 
 pared, — this was held not recoverable by the assignees ; 
 though, if it had been paid by way of compounding the pro- 
 secution, it would have been otherwise. (4) 
 
 A right of action, however, does not pass to the assignees, 
 unle&s they interfere ,- for the bankrupt may sue as trustee 
 for them, and has a good title against all persons hut the 
 assignees. (5) And no right of action passes to them for a 
 mere personal tort to the bankrupt; such as assault, or 
 defamation. But, with respect to a tort to the property of 
 the bankrupt, which has the effect of deteriorating its 
 value, whereby the assignees ai'e deprived of the benefit 
 which they would have otherwise enjoyed — as in the case 
 of running down a ship, — or cutting timber, whereby a 
 
 (1) Richards w. Richards, 9 Pri. (4) Harvey v. Morgan, 2 Star. 
 219. ^V. 
 
 (2) Key \. Flint, sTaunt. 21.j (5) Cumvdng v. Roebuck, \Yio\t. 
 and see " Set Off." 472. Clarlc v. Calvert, 5 Moore, 
 
 (3) Brandon v. Pate, 2 H. B. 96. 
 308.
 
 Sect. 2.] AS TO PERSONAL PROPERTY. 387 
 
 greater injury is sustained than the mere value of the Glioses in 
 
 timber fallen, — this is a question which, Sir W.Evans 
 
 says(l), has never yet been fully considered. Though 
 
 there seems to be no more reason, why such a right of 
 
 action should not pass to the assignees, than in those cases 
 
 where the party has received money, or made a profit, in 
 
 consequence of his tortious act — when the assignees may 
 
 waive the twt, and bring an action of assiimpsit. 
 
 Where the bankrupt had recovered damages in an action Where 
 
 on the case for ivords, and the sheriff had levied the amount 1^;^° "j^^J" 
 
 under an execution against the defendant; but, instead of sheriff 
 
 paying it over to the bankrupt, brought it into court, and """^r an 
 ^ J i:> I ' » ' ^ execution 
 
 the assignees applied to take the money out of court, — it in tort. 
 was held, in one of the old cases, that the assignees 
 were, under these circumstances, not entided to the money ; 
 on the ground, of its being in custodid legis, and there- 
 fore not assignable — and that as it was levied by re- 
 cord, it could only be delivered to him who was able to 
 acknowledge satisfaction of record, which the assignees 
 (being strangers to the record) could not do; the money 
 was therefore ordered to be delivered to the bankrupt. (2) 
 But in another case, under similar circumstances, the Mode of 
 Court, though they refused to order the money to be paid P'"oceea- 
 over to the assignees, consented nevertheless to detain it, recover it, 
 in order that the assignees might take out a scire facias 
 against the defendant to try the bankruptcy. (3) And this, 
 indeed, appears to be the more regular course of proceed- 
 ing, whether the sheriff brings the money into court, or 
 retains it in his hands (4); though in one case, where the 
 bankrupt had obtained judgment on a scire facias, the 
 Court, upon motion, ordered the judgment to be entered, 
 so as to entitle the assignees to the benefit of it, without 
 bringing a new sci. fa. (5) As several subsequent cases, 
 
 . (1) Evans's B.L. 14. 4 Evans's (s) Monk v. Morris, Yentr. 193. 
 Stats. 329. 1 Mod. 93. 
 
 (2) Ben$07i V. Flower, Cro.Car. (4) See post, "Actions," ch. 17. 
 166.176. Sir W.Jones, 215. s. 3. 
 
 (5) Plumvier v. Lea, 5 Mod. 88. 
 c c 2
 
 388 
 
 OF THE ASSIGNMENT [Cll.ll. Pt.2. 
 
 Choses ill 
 action. 
 
 Partner- 
 ship pre- 
 mium pay- 
 able by 
 instal- 
 ment. 
 
 Compen- 
 sation 
 under 
 Westlndia 
 Dock Act. 
 
 Good-will 
 of a busi- 
 ness, if as- 
 signed by 
 assignees, 
 not bind- 
 ing upon 
 the bank- 
 rupt. 
 
 however, have determined that a party, who is entitied ta 
 receive money levied by a sheriff, may bring an action 
 against hira for not paying it over, it seems that the as- 
 signees might (if the sheriff retained money in his hands 
 which he had levied under the bankrupt's execution) 
 recover it from him in an action for money had and 
 received. ( 1 ) 
 
 A trader having agreed, in consideration of a sum pay- 
 able by instalments, to take two persons into partnership 
 with him for a period of eighteen years, became bankrupt 
 five years after the commencement of the partnership, 
 when only one instalment was due : — the Court held, that 
 his assignees were, nevertheless, entitled at the respective 
 periods to receive the remaining instalments. (2) 
 
 Where covipensatioyi was given by the legislature to the 
 proprietors of ancient quays, upon the establishment of the 
 West India Docks, Lord Eldon decided, that this was an 
 interest capable of disposition, and consequently passed to 
 the assignees. (3) The subject matter in this case was a 
 specific vested pecuniary interest, and there could, there- 
 fore, be no doubt entertained that it was comprehended 
 within the terms of the Bankrupt acts. 
 
 But, with respect to what is called the good-will of a 
 business — that is, a compensation given to a trader for 
 declining trade and recommending another as his suc- 
 cessor, he himself engaging not to carry on the same 
 business within certain limits, — Sir W. Evans very justly 
 observes, it is impossible to suppose, that the assignees of a 
 bankrupt can compel him to enter into similar stipulations, 
 for a consideration to be paid to themselves. (4) And his 
 reasoning derives great weight from what was said by 
 Lord Eldon in a case, where the assignees of a bankrupt 
 (who was a carrier) had sold to a plaintiff the premises 
 
 (1) Speakev. Richards, 2 Show. 
 289. Dale V. Birch, 5 Camp. 547. 
 Longdill V. Jones, 1 Star. 345. 
 
 (2) Akhurst \. Jackson, 1 Swanst. 
 85. Wils. Ch.Rep.4T. 
 
 (o) Chandler v. Gardiner, cit, 
 17 Ves.338. 343. 
 (4) Evans's B. L. 20.
 
 Sect. 2.] AS TO PERSONAL PROPERTY. 389- 
 
 which the bankrupt had occupied, as well as the carrying Chosen in 
 business, in these terms : " and also the good-'will of a " ^ '""' 
 long established, trade, S,-c. ,-" and, the bankrupt having 
 resumed the Hke business in the same district, the Lord 
 Chancellor refused to grant an injunction to prevent him 
 from so doing, — observing, that the good-will, which 
 was the subject of sale, was nothing more than the ^);o- 
 hahility that the old customers would resort to the old 
 place ; and that by interposing in this particular instance, 
 he should carry the effect of injunction to a much greater 
 length, than any decision had authorized, or imagination 
 ever suggested. ( 1 ) 
 
 It has, however, been decided that the right of publish- Copyright 
 ing' a particular newspaper was a property affected bv the "^"^"'^- 
 Bankrupt law (2); and Lord Mansfield is also reported to signable. 
 have held, that what is called a news-iaalk, that is, the 
 business of selling newspapers to particular customers 
 within a given beat, was likewise a property disti'ibutable 
 under a commission of bankrupt. (3) But the authority of 
 this last case (as far as it implies any obligation on the 
 bankrupt) is much shaken by the above decision of Lord 
 Eldon in Crutwell v. Li/e, as well as the forcible reasoning 
 of Sir W. Evans (4), in his comment on the former statutes 
 relating to bankrupts. 
 
 A patent right for the exclusive exercise of an invention, A patent 
 
 though obtained from the crown by the bankrupt after his "^ ' ^^^^^ 
 o "^ _ r m assig- 
 
 bankruptcy, but before he procures his certificate, is nees. 
 
 affected by the previous assignment of the commissioners, 
 
 and also vests in the assignees. (5) 
 
 So, a jpolicij of insurance,) effected by the bankrupt upon So a po- 
 
 his own life at an annual premium, passes to his assignees; '^^ ° '"' 
 
 ^ * n ' surancc on 
 
 the bank- 
 
 (1) CruUvell V. Lye, 1 7 Ves. 355. (.3) 2 N. R. 70. '^"P^''' 'i^^. 
 1 Rose, 123. , (4) Evans's Bankrupt Statutes, 
 
 (2) Longman v. Tripp, 2 N. R. page 19. note ( 10). 
 
 67.; and see Hogg v. Kirby, 8 Ves. (5) Hcsi,e v. Stevenson, 3 B. & P. 
 1 25.; and CooA-e v. Calcraft, 3 Wils, 565. 
 580. as to the general interest in 
 such property. 
 
 c c S
 
 390 
 
 OF THE ASSIGNMENT [Ch.ll.Pt.2. 
 
 action. 
 
 and where, instead of delivering it up as part of his effects, 
 a bankrupt secretly assigned it to another person, who paid 
 the arrears of the premium, and upon the death of the bank- 
 rupt received the sum insured, — the amount, deducting the 
 arrears so paid, was held to be recoverable by the assignees 
 as money had and received to their use. (1) 
 
 A lease 
 passes to 
 assignees, 
 though 
 containing 
 a general 
 proviso 
 not to 
 assign. 
 
 Aliter, if 
 proviso to 
 re-enter, 
 if lessee is 
 found a 
 bankrupt. 
 
 Section III. 
 
 Of Leases and Annuities, and herein of Forfeiture upon 
 Alienation. 
 
 A Lease granted to a bankrupt passes to his assignees, 
 although it contain a proviso that the lessee shall not 
 assign without the lessor's consent; for the interest in 
 the lease is considered to vest in the assignees by oper- 
 ation of law (2), and not by the act of the furty, (that 
 is, the voluntary assignment of the lessee) to which last 
 mode of transfer a restriction of this nature is alone 
 confined. (3) But a lease, with a proviso that the land- 
 lord might re-enter, if the lessee should " commit an 
 act of bankruptcy whereon a commission should issue, and 
 he should be found, a bankritpt," does not pass to the 
 assignees (4') ; for this is a condition annexed to the demise 
 itself, and renders the term void, in case the lessee becomes 
 a bankrupt. The owner of property, indeed, cannot by 
 contract, or otherwise, qualify his own ittterestf by a con- 
 dition determining or controlling it in the event of his bank- 
 ruptcy, to the prejudice of his creditors, (as has been already 
 fully considered in the case of marriage settlements) ; but 
 a lessor, like any other grantor or alienor, may qualify 
 
 (1) Schondler\. IVace, I Camp, (5) Ex parte Baglehole, 1 Rose, 
 487. 432. Ex parte Sherman, Buck, 
 
 (2) Goring \. Warner, ^'E<\.Ca. 462, 
 
 Ab. 100. 7 Vin, Ab. 85. Philpot v. (4) Roe v, Galliers, 2 T. R. 133,j 
 J/oa!;-e, Amb.480. 2Atk,219, Doe and see 15 Ves, 268. 
 v, Bevan, .3 M, & S. 353. Doe v. 
 Bugbt/, 3 Wils. 234.
 
 Sect. 3.] AS TO PERSONAL PROPERTY. 391 
 
 the interest of Jiis lessee, upon a condition to take effect on AunuUies. 
 
 the bankruptcy of the lessee. (1) 
 
 So, where the term is made to depend upon the actual , where 
 
 the terni 
 occupation of the premises by the lessee, the assignees have, depends 
 
 in this case, not such an interest as they can assign, if the "P^" ^'^ 
 , , , , . . actual oc- 
 
 bankrupt does not contmue to occupy. (2) cupation. 
 In like manner where an annuity was given by will Conflict- 
 to a trader " payable to Jtim only, upon his own re- 'P? .^' 
 
 \ .' , sions in 
 
 ceipt and no other, and to cease immediately upon alien- the case of 
 
 ation^^ — it was held, that it ceased upon his bankruptcy, j^." pnnuity 
 and the bargain and sale of his estate. (3) So, where personal 
 there was a bequest to pay an annuity to A., with a proviso enjoyment. 
 that if by any ways or means whatsoever he should sell, 
 dispose of, or incumber his life-interest, or any part thereof, 
 his interest should then cease, and the trustees should 
 apply and determine the same for the benefit of his chil- 
 dren, — it was held, that upon his bankruptcy the annuity 
 ceased to be the subject of his personal enjoyment, and did 
 not, therefore, vest in his assignees ; but that his children 
 were entitled to it. (4) 
 
 But where a testator directed, that his estate and effects 
 should be laid out in the public funds in the names of 
 trustees, who were to " pay the dividends from time to 
 time into his son's hands, or to his order, and on his re- 
 ceipt, to the intent that the same, or any part thereof, should 
 not be grantable, or assignable, by way of anticipation," — 
 Lord Eldon held, that on the bankruptcy of the son, his 
 assignees were entitled to his interest under the will. (5) 
 And in another case, where the testator bequeathed several 
 annuities, and (amongst the rest) one to the bankrupt, and 
 declared that " if any of the annuitants should assign, or 
 dispose of, or otherwise charge or incumber his annuity, so 
 
 {l)Wilson\.Greeniuood,\^svan?,t. (3) Dommett v, Bedford, 6 T. 
 481.; and see per Lord EUenbo- R. 684. oVes. 149. 
 rough, 3 M. & S. 357. (4) Cooper v. Wt/att, 5 Mad. 48.5. 
 
 (2) Doe V. Clarlic, 8 East, 185. (5) Brandon v. Robinson, 1 Rose, 
 
 197. 
 
 C C 4
 
 392 OF THE ASSIGNMENT [Ch.ll.Pt.^; 
 
 Amiuities. as not to be entitled to the personal receipt, use, and en- 
 joyment thereof, the annuity should thenceforth cease, de- 
 termine, and be void, and should immediately devolve upon 
 the person next entitled, by virtue of the limitations in the 
 Avill," — Sir W. Grant, upon the principle of the above 
 decisions as to leases, in which an assignment bjj operation 
 of laiv is holden not to be an alienation of the party, con- 
 sidered that the interest had not ceased by the bankruptcy, 
 but that it vested in the assignees. ( 1 ) Though, in another 
 case, where the annuitant had taken the benefit of the 
 insolvefit act, the same learned Judge held, that a condition 
 of this nature was broken by the annuitant, inasmuch as 
 the signhig the petition and schedule were clearly acts of 
 alienation committed by the insolvent. (2) 
 Observ- These decisions of Brandon v. Robiyison and Wilkinson 
 
 a ions. ^^ JVilkinson are, certainly, quite at variance with those of 
 Dominett v. Bedford and Cooper v. Wyatt. The grounds 
 of Lord Eldon's judgment in Braiidon v. Robinson are, 
 that there is a great difference between giving an interest 
 to a person while he shall remain solvent, and then over, — and 
 giving it gcncrallij for life ; and that it is not enough for a 
 testator to say the fund shall not be transferred, — but that 
 in order to prevent that, it must be given over to somebody 
 else, or made to fall into the residue of his property ; other- 
 wise, it becomes an equitable interest to which the assignees 
 are entitled. (3) This reasoning, however, will not apply 
 to the case before Sir W. Grant, where the annuity isoas 
 given over, being made to devolve upon the person next 
 entitled under the will ; and the limitation is also strong as 
 to the personal e)]joj/jnetit of the annuity by the annuitant. 
 Whether a grantor, therefore, of an annuity, can effectually 
 limit his grant to the period only of the solvency, or per- 
 sonal enjoyment, of the annuitant, unaccompanied with any 
 
 (1) Wilkinson v. Wilkinson, G. and see Holijland v, De Mendez^ 
 Coop. 259. 3 Meriv. 184. 
 
 (2) Shee V. Hale, 15 Ves. 404.; (.3) 1 Rose, 197.
 
 Sect. 3.] AS TO PEnSON-AL PROPEnTY. 393 
 
 limitation over in ease of insolvency, &c., so as to prevent Leases. 
 it from passing to the assignees under a commission of 
 bankrupt, — is a question, which may still admit of very 
 considerable doubt. 
 
 The general assignment of a bankrupt's estate does not Assign- 
 vest a lease or term of years in the assignees, unless they J^oJ'yest^a 
 do some act to manifest their assent to the assignment, as lease in 
 it regards the term, and their acceptance of the lease. (1) ^"^^^'''S- 
 For they are not bound (as has been before observed (2) ) unless they 
 to take all the property of tlie bankrupt, but may reject 1'^!^"^*^° 
 such as may be rather a burthen than a benefit to the term, 
 estate. Before the case of Copcland v. Stephens^ however, 
 it was a point still undecided, whether the bankrupt's 
 interest in a lease passed immediatehj to the assignees, de- 
 feasible upon their actual refusal to take it, — or, whether 
 the interest in it was suspended until their acceptance or 
 rejection of it. In an able judgment pronounced by Lord 
 Ellenborough in that case, it was determined, that the effect 
 of the ^Lssignment vf?LS suspended, until the assignees decided 
 either to accept, or reject, the lease ; and that the estate re- 
 maificd in the bankrupt during the 2)ertod qfstispension, — but 
 subject to the i-ight of the assignees to have the term, by 
 their subsequent acceptance of it, — and thereby to vest it 
 in themselves. (3) 
 
 "What acts on the part of the assignees will amount to an Cases of 
 acceptance of the lease, and what to a rejection, will be accept- 
 best explained by the following cases. rejection, 
 
 A landlord applied to the assignee to know, if he meant What 
 to take the bankrupt's interest in the lease, and he an- amounts 
 swered, that if he did not let it by Lady-day, he would l°ic''e'!'^^^^ 
 give it up ; and at Lady-day the assignee paid the rent then 
 due, and offered the landlord the key : — under these cir- 
 cumstances, Lord Kenyon held, that though the assignee 
 might have refused it at first, yet he could not take it in part, 
 and afterwards reject it, when he found that it would not 
 
 (l) Coj)eland v. Stephens^ 1 B. & (2) Ante, 320. 
 A. 593. (5) 1 15. & A. 593.
 
 394 OF THE ASSIGNMETJT [Cll. 1 1. Pt.2. 
 
 Leases. answer and he could not let the premises. (1) So, where 
 the assignees, who were chosen on the Sth July, allowed 
 the bankrupt's cows to remain on the demised lands till the 
 10/A, and ordered them to be milked there, — Lord Ellen- 
 borough decided, that they thereby became tenants to the 
 lessor; and, the cows being removed on the 10th to avoid 
 a distress for arrears of rent, it was held, that the landlord 
 had a right to follow and distrain them under the 11 G. 2. 
 c. 19. (2) So, if assignees intermeddle with, and assume 
 the management of a farm, this is a sufficient election to 
 take to the term (3), and renders them liable to the land- 
 lord. So, also, where assignees entered upon, and took 
 actual possession of the leasehold property, they were held 
 to become chargeable with the covenants in the lease, 
 although the bankrupt's effects were upon those premises, 
 and the assignees delivered up the keys immediately after 
 the effects were sold ; for, if they had wished to curtail the 
 full legal effect of taking possession of the premises, they 
 should have entered with a protest, that their entry was not 
 for the purpose of possessing themselves of the premises as 
 assignees, but merely to take possession of the goods. (4) 
 And, when the assignees permitted the bankrupt to continue 
 in possession of the premises, from the period of his bank- 
 ruptcy in 'November until April, and to carry on the trade for 
 the benefit of the estate, the assignees inspecting the books, 
 and furnishing the bankrupt with money, — it was held, 
 that they could not afterwards disclaim to accept the lease, 
 notwithstanding a notice to that effect had been given by 
 them within a month after the bankruptcy. (5) So, where the 
 bankrupt having a lease of premises, and also a reversionary 
 interest in them, the assignees sold " all his estate and 
 reversionary interest in the premises," — this was held to 
 
 (1) Broome v. Robinson, cit. (4) Hanson v. Stevenson, 1 B. & 
 7 East, 339. A. 503. 
 
 (2) Welch V. Myers, 4 Camp. (5) Clark v. Hume, 1 Ryan & 
 568. M. 207. 
 
 (3) Thomasw. Pe7nberlon, iTaunt. 
 201.
 
 Sect. 3.] AS TO PERSONAL PROPERTY. 395 
 
 amount to an acceptance of the lease. (1) And so, where Leases. 
 the assignees placed a board upon some part of the pre- 
 mises, with a view to dispose of them, they were holden 
 liable in use and occupation for a year's rent. (2) Where 
 assignees, also, upon being required to give up possession 
 of premises, answered that it was not consistent with their 
 duty so to do, — this was held sufficient proof of possession 
 by them, in an action of ejectment brought against them 
 for the recovery of the premises. 
 
 But though the assignees, by accepting a lease, discharge Assignees 
 the bankrupt from any claims for rent, and render them- fiL;"ij° 
 selves liable to the landlord, yet they may assign it, if they bility by 
 choose, to any person (even though an insolvent) in order ^^^^g"'"?- 
 to get rid of their liability. (3) 
 
 And the assignees are not bound to take a lease, merely What acts 
 
 because they endeavour to sell it, with a view to ascertain ° ""^^ 
 
 1 -111 • , ,. amount to 
 
 Its value, — provided they exercise no other acts or^owner- an accept- 
 
 ship over the premises demised. Thus, where assignees ^"*^^* 
 advertised a lease for sale by auction (without stating them- 
 selves to be the owners, or possessed of it), and never, 
 in fact, took possession of the premises, and no bidder 
 offered at the auction, — it was held, that this was no more 
 than an experiment to ascertain the value, and whether the 
 lease was beneficial or not to the creditors, — and did not 
 amount to an assent to take it. (4) If, indeed, a bidder 
 had been found, and the assignees had accepted the bid- 
 ding, and received a deposit, then that would have been 
 evidence of their assent to take to the premises, notwith- 
 standing the contract of sale might have afterwards gone 
 off". (5) So, where assignees allowed the bankrupt's effects 
 to remain on the premises for nearly a twelvemonth after 
 the bankruptcy, and then, to avoid a distress, paid the 
 rent due, at the same time intimating to the landlord that 
 
 (1) Page V. Godden, 2 Star. 509. (4) Turner v. Richardson, 7 East, 
 
 (2) Gibson v. Courthope, 1 D. & 355. 
 
 R.205. (5) Hastings v. Wilson, 1 Holt, 
 
 (3) Onslow V. Corrie, 2 Mad. 330. N. P. Rep. 290,
 
 396 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Leases. 
 
 Assignees 
 may be 
 compelled 
 to elect. 
 
 ^Extent of 
 the Chan- 
 cellor's ju- 
 i'isdiction 
 in this 
 respect. 
 
 they did not mean to take to the lease, unless it could be 
 advantageously disposed of — and the lease was soon after- 
 wards put up to sale by order of the assignees, but there 
 was no bidder for it, and they even omitted to return the 
 key to the landlord for near four months afterwards, but 
 never took actual possession of the premises, — Lord El- 
 lenborough held, that the assignees were not, under these 
 circumstances, liable to the landlord as assignees of the 
 lease. ( 1 ) And so, where the bankrupt had underlet part 
 of the demised premises, and the assignees released the 
 under-tenant, and on being afterwards asked by the lessor 
 to elect, they refused to take the lease, — it was held, 
 that the release to the under-tenant did not amount to an 
 acceptance. (2) 
 
 But now, in order to prevent any inconvenience to the 
 landlord, from the neglect of the assignees to determine 
 whether they will take to the lease or not, it is by the 
 75ih section of the new act provided, that if the assignees 
 shall not (upon being thereto required) elect, whether they 
 will accept or decline any lease, or agreement for a lease, 
 to which the bankrupt was entitled, the lessor, or person so 
 agreeing to grant a lease, or any person entitled under 
 them, may apply by petition to the Lord Chancellor; who 
 may order them so to elect, and to deliver up such lease, 
 or agreement, (in case they shall decline it,) as well as the 
 possession of the premises, — or may make such other 
 order therein as he shall think fit. ('^) 
 
 The above clause, it has been held, applies only to cases 
 between the lessor and lessee, or the assignee of the lessee ; 
 and not to cases between the lessee and the assignee of the 
 lease. (4) The Lord Chancellor is not empowered under 
 this section to determine the question, whether the assignees 
 have elected to take the lease or not, — but can only send such 
 
 (1) Wheeler v. Bramah, 5 Camp. 
 340. 
 
 (2) Hill V. Dobie, 2 Moore, 342, 
 8 Taunt. 325. 
 
 (j) This clause is taken from the 
 49 G.5. c. 121. s. 19. 
 
 (4) Taylor V. Young, 3 B. & A. 
 521.
 
 Sect. 3.] AS TO PERSONAL PROPERTY. 397 
 
 a question to be tried by a jury (1) ; for he has only autho- Leases. 
 rity, under the above provision, to make an order that the 
 assignees shall elect. It is only, in fact, when assignees 
 will not decide, that jurisdiction is given to the Lord Chan- 
 cellor ; for if they have already accepted, or rejected, he 
 has no jurisdiction. (2) Therefore, where assignees had 
 previously rejected a lease, a petition by the lessor for pay- 
 ment of rent due after the bankruptcy, and for a com- 
 pensation for hay and straw which the assignees had carried 
 off the premises, was dismissed (3) ; Lord Eldon concurring 
 with the Vice-Chancellor, that, as between the lessor and 
 the assignees of a bankrupt lessee, the Court had not 
 jurisdiction — except in cases under the statute — and upon 
 petitions for an injunction; for which the petition in this 
 case contained no prayer. 
 
 Upon a petition for an order on the assignees to elect, Assignees 
 they will be allowed a reasonable time — such as ten days, reasonaWe 
 for instance — to consider what will be most beneficial for time to 
 the creditors. (4) And in a case where there were two ^ ^'^ ' 
 commissions, and issues directed which were still un- 
 decided, — the Court granted an order (under each com- 
 mission) on the assignees, to make an election to depend on 
 the result. (5) 
 
 Where the assignees declined taking the lease, but in- Bound by 
 
 sisted that they were entitled to remove from the premises *^"^ ^^o^^- 
 
 all the hay, straw, &c. (which, by a covenant in the lease, lessee, as 
 
 the lessee at the end, or sooner determination of the term, ^° leaving 
 
 • \ T 1 T-i 1 1 -1 "ayj straw, 
 
 was to leave upon the premises), — Lord Lldon determmed &c. 
 
 the lease, and directed a case upon the construction of the 
 
 covenant. (6) Upon the argument of this case before the 
 
 Court of King's Bench, it was decided, that the assignees 
 
 (1) Ex parte Qjiantock, Buck, (6) Ex parte iV/xow, lRose,445. 
 189. This case at first sight appears to 
 
 (2) Mad. 77. clash with the decision in ex parte 
 
 (3) Ex parte Wat-wick, Buck. Warwick, supra; but the distinc- 
 326. tion between them is, that in this 
 
 (4) Ex parte Scoti, 1 Rose, 446. case there was a prayer for an 
 note (a). injunction; in that case there was 
 
 (5) Ex parte Pomeroy, 1 Rose, no such prayer. 
 57.
 
 398 
 
 or THE ASSIGNMENT [Ch.ll. Ft. 2. 
 
 Leases. 
 
 When en- 
 titled to 
 off-going 
 crops. 
 
 Parol 
 agreement 
 for a lease, 
 not within 
 the sta- 
 tute. 
 
 Where the 
 lease in the 
 hands of a 
 third per- 
 son. 
 
 were bound by the covenant of the lessee, and were not 
 entitled to the hay, straw, &c. (1) In all these cases, 
 indeed, where the Lord Chancellor determines the lease 
 upon the petition of the lessor, the assignees are in the 
 same situation, as the tenant would have been in by effluxion 
 of time. Therefore, where a lease contained a covenant, 
 that the lessee " at the expiration, or other sooner deter' 
 niinatioti of the lease," might take the off-going crop — and 
 the lease was determined by the Chancellor after the bank- 
 ruptcy of the lessee, — the assignees were held to be en- 
 titled (2) to the off-going crops. Nor does it make any 
 difference, that the lease is only from year to year, deter- 
 minahle on giving half a yearns notice, and the covenant is 
 to leave the hay, &c., or take the crops, on quitting the pre- 
 mises (3); for the election of the assignees, not to take the 
 lease, has the same effect (with reference to the covenant), 
 as though the lessee had quitted upon notice. 
 
 A ^jaro/ agreement for a lease, (although brought within 
 the principle, upon which a court of equity would decree a 
 specific performance, upon acts of part performance) it 
 has been held, is not an agreement within the meaning of 
 the statute, — so as to put assignees to elect, or reject, such 
 agreement. (4) 
 
 Where the lease had been deposited by the bankrupt 
 with a THIRD PERSON, as a security for a debt, and the 
 assignees refused to take to the term, — upon a petition by 
 the landlord that the assignees might deliver it up, as well 
 as the possession of the premises, an order to that effect 
 was made. For though the statute does not in words 
 extend to cases, where the lease is in the hands of a third 
 perso7i, yet it seems that, by an equitable construction of the 
 above section of the act, which is intended for the benefit 
 of landlords, the Chancellor has such a jurisdiction. (5) 
 
 (1) In re Govgh, Buck, s 5. (4) Ex parte Sutton, 2 Rose, 
 
 (2) Ex parte Maundrell, Buck, 148. 
 
 85. (5) Ex parte Clunes, 1 Mad. 76. 
 
 (5) Ex parte JVkittingtoji, Buck,
 
 Sect. 4.] AS TO PERSONAL PROPERTY. 399 
 
 Section IV. 
 Of Property Abroad. 
 
 As the statute enables the commissioners to assign the Personal 
 bankrupt's property, wheresoever the same may he found or abroad^ 
 hwian{\\ the assignees are entitled to all the personal passes to 
 property, which the bankrupt may possess in 2iny foreign ^^^^S"^^^ 
 country, unless there happens to be some positive law of 
 that country to prevent it. For persoiial property, accord- 
 ing to the general principles of all laws, has no visible 
 locality, but is subject to that particular law, which governs 
 the person of the owner. (2) If the Bankrupt law, in- 
 deed, was circumscribed by the local situation of the 
 property, a door would be open to all the partiality of un- 
 due preference, which it is framed chiefly to prevent; for 
 it is not very difficult to foresee, how frequently property 
 would be sent abroad with that unjust view, immediately 
 previous to and in contemplation of an act of bankruptcy. 
 But the consequence of the rule, as it at present applies to 
 personal property, is, that a commission of bankruptcy 
 followed by an assignment, defeats all preference attempted 
 to be obtained by any one creditor, through the medium 
 of the law of the country where any of the bankrupt's 
 effects may happen to be placed — (as well as by any volun- 
 tary conveyance of the bankrupt) — after the period, when 
 the legal effect of the bankruptcy attaches to the general 
 estate. 
 
 Thus, the bankrupt's goods in Ireland will pass to the Property 
 assignees by the assignment from the commissioners, and ^" Ireland, 
 the Irish courts will also take notice of our laws, so as to 
 prevent a creditor from attaching property there after the 
 commission, and gaining a preference (3) over the as- 
 signees. So, the courts in Scotland, and the colonies, Scotl.ind. 
 
 (1) &ciio» 63. ante, page 383. (3) Good, 114. Nealev. Cotting- 
 
 (2) SUlv. Worswick, 1 H. B.665. ham, 1 H. B. 132. in note.
 
 400 
 
 OF THE ASSIGNMENT [CIl. 1 1. Pt.2. 
 
 Property 
 abroad. 
 
 Where a 
 
 creditor 
 
 attaching 
 
 money 
 
 abroad, 
 
 liable to 
 
 refund to 
 
 When not 
 so liable. 
 
 recognize the English law in this respect. For, where 
 bankrupts here had carried on business both in London 
 and in Scotland, under distinct firms, the Court of Session 
 in Scotland held, that the commission here vested in the 
 assignees all the property of the bankrupts wherever 
 situate, — precluding creditors in Scotland, from attaching 
 by sequestration such parts of the bankrupts' property, as 
 remained, or was situate, in that country. (1) Whether a 
 commission in England, or a sequestration in Scotland, is 
 to be preferred, as the mode of administering the effects of 
 a bankrupt, depends upon their respective priorities. (2) 
 
 Where, after the assignment of a bankrupt's estate, 
 a creditor residing in England, who had notice of the 
 bankruptcy and assignment, attached the money of the 
 bankrupt abroad, — it was held, that his assignees might 
 recover it against the creditor in an action for money had 
 and received. (3) And in another case, where the attach- 
 ment was before the assignment, the same doctrine was 
 held. (4) In one case indeed of this kind. Lord Hardwicke 
 even granted a writ of ne exeat regno against a creditor, 
 who before the bankruptcy had gone into Scotland, and 
 made arrestments on debts due to the bankrupt there, 
 though he had not obtained sentence — saying, that the 
 case was like a foreign attachment, by which a creditor was 
 not suffered to gain a prioi'ity. (5) 
 
 But in a case, where the bankrupt was one of several 
 partners — his partners carrying on a branch of the 
 business in the West Indies — and a joint creditor there 
 attached property belonging to the firm abroad, — it w^as 
 
 (1 ) Bank of Scotland v. Cidhbert, 
 1 Rose, 462.; and see Sellaig v. 
 Davis, 2 Dow. Rep. 230, 2 Rose, 
 291. and Odiuin v. Forbes, Buck, 
 57. 
 
 (2) Ibid. 
 
 (3) Hunter v. Potts, 4 T. R. 1 82. 
 Philips V. Hunter, 2 H. B. 402. The 
 law upon this subject, however, jiji- 
 pears to have been formerly laid 
 
 down differently by Lord Mansfield, 
 both at Nisi Prius, and at the Cock- 
 pit. ( Waring v. Knight, I C.B.L. 
 300. C/eve v. Mills, ibid. 297.) 
 See also a powerful judgment of 
 Eyre C. J. on that side the question, 
 in Philips v. Hunter, 2 H. B. 409. 
 
 (4) Sill\. Worswick, 1 H.B. 665. 
 
 (5) M'Litosh V. OgUvie, 4T. R. 
 187. note (a).
 
 Sect. 4,] AS TO PERSONAL PROPERTY. 401 
 
 held by Sir W. Grant, that he was entitled to retain what Property 
 he had recovered, to the extent of satisfying his joint "^ 
 debt. (1) And where the attachment of property in a 
 foreign country is complete before the act of bankruptcy, the 
 creditor is then, of course, entitled to hold the property 
 attached against the assignees, in satisfaction or reduction 
 of his debt. (2) Whenever, also, property has been duly 
 recovered by a creditor from the bankrupt's debtor, by 
 process of local law, the assignees are not entitled to claim 
 the value of it again, as against such debtor. (3) 
 
 A., a merchant at Paris, purchased in his own name, 
 but with the money and on the account of B. (a merchant 
 at Bristol) certain bank shares in the French funds ; and 
 B. afterwards drew bills on A., which A. accepted, on the 
 security of those shares standing in his name ; three of 
 which bills were purchased by C. (a British subject) for a 
 valuable consideration paid to B. Before the bills became 
 due, B. authorised A. by letter to sell the bank shares, in 
 order to reimburse himself against these bills; but previous 
 to the arrival of that letter, A. had stopped payment, — 
 and the bills were dishonoured. B., also, afterwards became 
 bankrupt ; and C. then, by process according to the French 
 law, attached the bank shares (still standing in the name of 
 A.) for the debt due to him as the holder of the bills ; and 
 the French court decreed, that the bank shares should be 
 sold, and that the proceeds should be applied, first to pay 
 a debt due from B. to A., and afterwards to retire the 
 bills; — and C, under this decree, received a certain sum 
 of money on account of the bills. Under these circum- 
 stances it was held, that the assignees of B. could not 
 recover back this money, as money belonging to B. ; for 
 that A. had more than a simple lien on the bank shares, 
 
 {\) Bnckwoodv.MilleryZM.evi\. ceived a completely satisfactory 
 279. Sir W. Grant expressed a answer. 
 
 doubt in this case, whether the (2) Ex parte jD'Oire-e. Ex parte 
 reasoning of Lord C. J. Eyre, in Le Mesiirier, 8 Ves. 82, 
 Philips V. Hunter, has ever re- (3) Le Chevalier v. Lynch, 
 
 Doug. 1 70. 
 
 D D
 
 402 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2'. 
 
 Properti/ 
 abroad. 
 
 Courts 
 here will 
 favour the 
 claims of 
 foreiffn 
 
 they being in law his property ^ and vested in him — though 
 in trust for B., after satisfying his own lien. (1) 
 
 Upon the same principle, as the courts here refuse to 
 acknowledge the validity of an attachment made by a 
 creditor on the bankrupt's property abroad, which may 
 give him an undue preference over the otlier creditors, — 
 so the English courts will equally give effect to the claim 
 of Foreign assignees, (when the laws of the Foreign country 
 ai'e proved) in the recovery of personal property here; — 
 and will prevent a creditor from obtaining an exclusive 
 satisfaction out of such property, to the prejudice of the 
 Foreign assignees. (2) 
 
 Section V. 
 
 Of Property in the Possession, Order, or Disposition of the 
 JBanlcrupt, as 7'eputed Oxvticr. 
 
 1. What things are tjoithifi the Statute. 
 
 2. PVhat Possession is '■joithin the Statute. 
 
 3. Possession as Factor, Banker, or Broker. 
 
 4. Possession as Trustee, Executor, or Adtninistrator. 
 
 By section 72. of the new statute, it is enacted (3), that 
 if any bankrupt at the time he becomes bankrupt shall, by 
 the consent and permission of the true owner thereof, have 
 in his possession, order, or disposition, any goods or 
 chattels, whereof he was reputed owner, or whereof he 
 had taken upon himself the sale, alteration, or disposition, 
 as owner, the commissioners shall have power to sell and 
 dispose of the same for the benefit of the creditors under 
 the commission. But any transfer or assignment of any 
 
 (1) Cazenove v. Prevost, 5 B. & (a). Jollei v. Deponthieu, ibid. 
 A. 70. 1 32. note. 
 
 (2) Sill^. Worswick, 1 H.B.691. (3) This section is taken from 
 Solomons V. Koss, ibid. I.'jI. note the 21 .lac. 1. c. 19. s. 10, 11.
 
 Sect. 5.] AS TO rEnsoNAL property. 408 
 
 ship or vessel, or any share thereof, made as a security for Reputed 
 any debt, either by way of mortgage ( 1 ) or assignment, ° ^"'^'^"P ' 
 duly registered according to the provisions of the new 
 register act, (4 Geo. 4. c. 41. s. 44.) is not to be invalidated, 
 or affected, by this enactment. 
 
 Atid, Isi, as to "jcJiat things arc isoithin the Statute. 
 
 The object of the above enactment is to remedy the 
 mischief arising from a trader holding out a delusive re- 
 sponsibility to the world, by appearing to be possessed of a 
 stock in trade, or of other valuable articles, which are the 
 subjects of sale and immediate transfer. The goods and On\y per- 
 chattels, therefore, comprehended within the meaning of the ^°| ^ ' 
 statute, must be taken to mean perso7ial chattels, and not 
 to comprise chattels real. For the 2^ossession, and power of 
 disposing^ of goods and personal chattels, are the only evi- 
 dences of ownership, to which persons dealing with traders 
 generally look ; but with respect to real property, the 
 fact of mere possession is not such evidence of ownership, 
 as to induce a creditor to rely on it; — it being a matter of 
 notoriety, that real estates are frequently mortgaged, and 
 that the mortgagor usually remains in possession of the 
 property. (2) No creditor, therefore, can with reason say, 
 that he has been deceived by the bankrupt's possession of 
 property of that description. 
 
 For this reason, Jixtures^ and things affixed to the free- Not fix- 
 hold, that are mortgaged with the premises to which they tures, &c. 
 belong (3); or even shares in a public company, whose 
 funds arise from the rents, or tolls, issuing out of real 
 estate (4), are not within the above enactment. But move- 
 
 (l) A mortgagee of a ship was (2) Ryal v. Rolle, 1 Atk. 16s. 
 
 not formerly so protected. Ste- 1 Ves. 548. 
 
 phens y. Sole, 1 Ves. 352. Hay v. (5) 1 Atk. 176. Hornv, Baker, 
 
 Fairbairn, 2 B. & A. 193. Monk- 9 East, 215. 
 
 house V. Hay, 2 B. & B. 114. (4) Ex parte Vauxhall Bridge 
 
 4 Moore, 57. 8 Price, 256. Kirk- Company, 1 G. & J. 131. 
 ley V. Hodgson, 1 B. & C. 588. 
 
 D D 2
 
 404 
 
 OF THE ASSIGNMENT [Ch.ll.Pt.2' 
 
 Reputed 
 oivnershij). 
 
 Alith, 
 
 moveable 
 
 utensils, 
 
 unless let 
 by usage. 
 
 able utensils not fixed to the freehold, such as a brewer's or 
 distiller'' s vats {!), or a di/er's pla?if (2), will be affected by- 
 it; unless, indeed, they are utensils of a particular trade, 
 in which there is a well-hncnson usage for the trader to have 
 those utensils let to him on hire — the possession of them 
 in that case not imposing on the world a false appearance 
 of property in the possessor (3) — as in the manufacturing 
 counties, where it is a common practice for the working 
 hosiers, spinners, and w^eavers to have on hire the posses- 
 sion of stocking-frames^ and other valuable machines, which 
 they are unable to purchase. And the same exception, 
 perhaps, will be found to apply to the case of job horses, 
 and carriages, which it is a well-known practice to have on 
 hire. (4) So, where a colliery was demised to the bank- 
 rupt, with certain engines, machinery, and implements, 
 which were to be rendered up to the lessor at the ex- 
 piration, or other sooner determination, of the lease — and, 
 the tenant failing in the payment of the rent, the lease 
 became forfeited, and the landlord recovered a judgment 
 in ejectment, but did not execute the writ of possession 
 until the day before the tenant became bankrupt, — it was 
 held, that the tenant never had under this demise the pos- 
 session, order, or disposition of the engines and machinery 
 within the meaning of the 21 Jac. 1. c. 19. s. 10. (from which 
 statute the above section is taken), but a mere qualified 
 right to use them during the term ; and that, even if they 
 had been in his possession within the meaning of the 
 statute, they would have ceased to be so, when the land- 
 lord resumed possession by executing the writ of inquiry. 
 Neither was the tenant considered to have such order and 
 disposition of them, though he continued to work the col- 
 liery, and have the use of them during the intermediate 
 
 (1) 9 East, 215. 
 
 (2) Brmon v. Wylic, 1 B. & P. 
 85. note (a). 1 C. B. L. 234. Ex 
 parte Dale, Buck, Z%5. Lingard 
 V. Messiter, 1 B. «& C. 308. 
 
 (3) Per Le Blanc J. 9 East, 244. ; 
 and see Storcr v. Hunter, 5 B. & 
 C. 568. 
 
 (4) Per Lawrence J. 3 Taunt. 
 
 490.
 
 action. 
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 405 
 
 time, between the recovery of the judgment in ejectment, ^<^pu(cd 
 and the execution of the writ of possession — a period of _^_[^/^- 
 fifteen months. (1) 
 
 All choses m action [2) are within the enactment; as Chosesin 
 shares in a public company (3), bills of exchange ("i), and 
 policies of insurance (5), — as well as a share in a news- 
 paper (6), stock in the public funds (7), and a patent for 
 an invention. (8) 
 
 2. What PossessioJi is within the Statute. 
 
 As to what possession will constitute a case of reputed 
 ownership, within the meaning of the above enactment, that 
 is a question more o^fact, than of Iww, — and, as such, pe- 
 culiarly within the province of a jury to determine. (9) The Possession 
 
 possession of property is, of course, prima facie evidence of ^™"" . 
 . facie evi- 
 
 reputed ownership ; and more or less strong, according to dence. 
 
 the circumstances under which that possession was ac- 
 quired, or is retained. The possession, however, must be 
 acquired before the act of ha^ikruptcx)^ in order to constitute 
 a possession within the meaning of the statute. 
 
 When a bankrupt has once been the ostensible oioncr of Still 
 property, and he continues in the visible possession of it at ^*J'°"gei", 
 the time of his bankruptcy, — that is a very strong case of bankrupt 
 reputed ownership ; and can only be rebutted by clear ^^^ °''^^ 
 proof, not only that there has been a transfer of the pro- owner, 
 perty from the bankrupt, but that such transfer was no- 
 torious to the world ; for when a man has been at one time 
 
 (1) Storerw. Hunter, sB. & C. (6) Longvmn v. Trij)]}, 2 N. R. 
 368. 67. 
 
 (2) Ri/all V. Rolle, supra, per (7) Ex parte Richardson, Buck, 
 LordK. 7T.R.23S. ISO. 
 
 (.5) Nelson V. London Assurance (8) Ex parte Granger, Evans's 
 Co?«^j«?/j/, 2 Sim. & S. 292. Statutes, title " Bankrupt," 64.; 
 
 (4) HornUowcr v. Proud, 2 B. and see ante, 389. 
 
 & A.327. (9) Doug. 317. 1 B. & P. 89. 
 
 (5) Fallcner v. Case, cit. 2 T. R. 9 East, 241. 
 491. Ex parte Smith, Buck, 149. 
 
 5 Mad. 63. 
 
 D D 3
 
 406 
 
 OF THE ASSIGNMENT [Ch. 11. Pt.2; 
 
 Reputed 
 
 ownership. 
 
 But must 
 be accom- 
 panied 
 with some 
 evidence 
 of reputa- 
 tion. 
 
 Reputa- 
 tion maybe 
 rebutted 
 by other 
 evidence. 
 
 A secret 
 
 transfer, 
 
 void 
 
 against 
 
 creditors. 
 
 the real owner of property, the presumption is that he con- 
 tinues so, where there is no change of possession. (1) But 
 mere continuance in possession by an assignor (under pecu- 
 niary embarrassments) of property assigned, though always 
 suspicious, is not of itself a conclusive badge of fraud. (2) 
 So, the fact o^ possession, without any evidence of reputation 
 of ownership, may not be sufficient of itself to bring the 
 case within the statute ; or, at least, not without showing 
 /ioto, or "whe?!, the bankrupt became possessed. And in all 
 these cases, where facts are proved, which amount to a 
 disposition of the property by the bankrupt as owner, 
 general evidence may be given of his being reputed to be 
 the owner. (3) But the inference of ownership, from pos- 
 session, and even from reputation of ownership, may be 
 rebutted by evidence contradicting that reputation. (4) 
 
 Independently, however, of any consideration of bank- 
 ruptcy, it is a general rule of law, that all secret sales and 
 transfers of personal chattels, unaccompanied by possession^ 
 are fraudulent and void as against creditors ; since the 
 effect of them is, to enable a party to gain a false credit 
 from the world. Therefore, where a creditor took an 
 absolute bill of sale of his debtor's goods, but agreed to 
 leave them in his possession for a limited time, the bill of 
 sale was held void against creditors. (5) And so, in the 
 case of an assignment to trustees, where possession did not 
 accompany and follow the deed. (6) 
 ment 
 
 stock, was NOTORIOUS in the neighbourhood — though pos- 
 session in this case was retained by the bankrupt for a 
 certain period, pursuant to the stipulations of the agree- 
 
 But where an agree- 
 for the transfer of household furniture and farming 
 
 (1) Per Holroyd J. 1 B. & C. 
 514. 
 
 (2) Hoffman v. Pitt, 5 Esp. 25. 
 Eastwood V. Broiun, 1 Ry. & M. 
 312.; sed vide per Buller J. Ed- 
 ivards v. Harben, 2 T. R. 697. 
 
 (3) Oliver v. Bartlclt, 1 B. & B. 
 269.; and see Muller v. Moss, 1 M. 
 &S.335. 
 
 (4) Gurr v. Rutton, 1 Holt, 527. 
 Per Gibbs C. J. 
 
 (5) Edwards v. Harben, 2 T. R. 
 587. Wordall v. Smith, 1 Camp. 
 3o3. 
 
 (6) Bamford v. Baron, 2 T. R. 
 594.; and see Worsletf v. De Mat- 
 tos, 1 Burr. 467.
 
 Sect. 5.] AS TO PEKSONAL PROPERTV^. 4-07 
 
 ment, — such a possession was held not to be within the What jws- 
 statute. (1) So where a person (though in embarrassed ^ ^^^'""' 
 circumstances) sold and assigned to a creditor all his in- 
 terest in a leasehold house in which he resided, together 
 with the whole of the furniture and household effects — 
 continuing in the occupation of the house and furniture pre- 
 cisely in the same manner as before ; but it did not appear, 
 that the creditor had given less than the Jidl value of the 
 property; and the assignor had, in fact, tvith the 2}^i}'c/iase 
 monei/, paid the debts of several of his other creditors, — this 
 was held to be a valid transaction (in the absence of any 
 fraud) against an execution creditor. (2) And Lord Chief 
 Justice Abbott said, that he had no doubt that the pur- 
 chase of a house and furniture, with an immediate demise 
 of them to the vendor, may be good, if there be no intention 
 to defeat or delay creditors by the transaction. (3) 
 
 Where an execution is levied on a trader's goods, but is Secret ex- 
 
 concealed for a length of time, and the trader remains in ^cu^i^n 
 
 ^ , ® , J . , . 1 within the 
 
 possession or the goods, and carries on business as usual, — statute. 
 
 this is a case of reputed ownership within the statute. (4) 
 And the same, where the luarrant was directed to the trader's 
 servant and another person, as special bailiffs, and they 
 took possession of the goods in the shop, but the business 
 was carried on as usual, though without the trader's in- 
 terference; — for the possession of the servant in this case 
 
 (1) Mvller V. Moss, 1 M. & S. Smith, Buck, 580.) But this urns 
 535. a part of the contract in Edwards 
 
 (2) Eastwood V. Broiun, 1 Ry. v. Harbcn, where the bill of sale 
 &M. 512. was held void. The better dis- 
 
 (j) Ibid. 515. Lord Ellenbo- tinction seems to be the one taken 
 
 rough in his judgment in Midler by Lord Coke ; who recommends, 
 
 V. Moss, supra, appears to make a that a gift in satisfaction of a debt, 
 
 distinction in fnvour of an assign- by a person mIio is indebted to 
 
 ment of furniture (where the as- others also, should be made piib- 
 
 signor continued in possession), that licly, and not in private; for se- 
 
 the right to do so formed a part cresy, he says, is a mark of fraud. 
 
 of the contraet ; — and the Vice- Twyne^s case, 5 Co. 80. ; and see 
 
 Chancellor, also, was inclined to Kidd v. Raidinson, 2 Bos. & P, 59. 
 
 draw a similar distinction, where (4) Toussaint v. Hartoj)p, 1 f lolt, 
 
 the delay of possession was consist- 555. 
 ent with the deed. {Hartlei/ v. 
 
 D JD 4
 
 408 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Reputed was considered to be the possession of the master. (1) 
 o wners ip . ^^^ ^^^^ j^ make any difference that, after the utensils or 
 Though fjoods are sold under such an execution, they remain in the 
 and let^at ^^'^^^^'^ possession at 2i yearly rental for the use of them. (2) 
 a rental. Thus, where a creditor took the furniture of a coffee-house 
 keeper in execution, which, witliout ever being removed, 
 he afterwards let to him at a yearly rent ; — such a possession 
 was held to be within the statute. (3) And though, in one 
 case of this kind, the creditor's initials were actually marked 
 on all the goods, it was held, that this was not sufficient evi- 
 dence of the notoriety of the chatige of property (4), so as to 
 defeat the claim of the assignees. But, where the execution 
 is notorious in the 7ieighhourhood, and the goods are hondjide 
 sold, — then it has been held (notwithstanding the continu- 
 ance of possession by the debtor) that they are protected 
 from subsequent executions (5) — and also (as it should 
 seem to follow) from any claim of the assignees of the 
 debtoi-, if he becomes bankrupt; for there can be no re- 
 puted oisonership of property in a person possessing it, which 
 is kno'xson to have been seized in his possession by the pro- 
 cess of the law. 
 
 Where, however, after a notorious sale of a dyeing plant 
 and other fixtures to a trader, there was a private re-sale of 
 them to the vendor, and then a lease from the vendor to 
 the trader, and he appeared to the world as the absolute 
 owner, — this. Lord Mansfield said, was an experiment to de- 
 feat the Bankrupt laws, and ought not to prevail against (6) 
 So any the assignees. So also, where a retiring partner leased to 
 
 utensils let ^^ others who continued the business, certain stills, vats, 
 
 to the , . 11-11 
 
 vendor at and utensils proper for carrying it on, and which had been 
 
 ^ ^^"^' used by the former partnership, — it was held, that (the con- 
 tinuing partners liaving become bankrupt) all such utensils, 
 
 (1) Jackson v.Irvin, 2 Cd.m^.'iB,. 652. Leonard v. Baker, 1 M. & 
 
 (2)lB. &P. 82. S. 251. Watkins V. Birch, 4Taunt. 
 
 (o) Lingham v. Biggs, ibid, 823. Joseph v. Ingram, 8 Taunt. 
 
 (4) Lingard v. Messiter, 1 B. & 858. 
 
 C.308. (6) Bryson V. Wylie, 1 B. & P. 
 
 (5) Latimer v. Batson, 4 B. & C. 83. note (a). 1 C. B. L. 555.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 4t>9 
 
 as were not fixed to the freehold, passed to the assignees, — Whutpos- 
 
 as being in the possession, order, and disposition of the '_ 
 
 bankrupts, as reputed owners. (1) 
 
 It will be observed in this class of cases, that the bank- 
 rupt Jiad once been the absolute owner, or part-oivner, of the 
 property, which was afterwards leased to him; and diat 
 the principle on which they were decided was, that the 
 change of property was not siifficienihj notorious, so as to 
 prevent the world from being deceived by the continuance 
 of possession. But it has also been held, where the bank- Or goods 
 rupt was not the previous owner of the property, — that a ^^ ^"^ 
 colourable lease to him of property, of which he has the though 
 
 exclusive possession, and over which he exercises complete "°^ . 
 
 7 -11 11 /'I -fii previous 
 
 control, will not take the case out or the statute. Ihus owner 
 
 where a trader, on leaving off trade, sold the concern to under a 
 the bankrupt, with the stock, utensils, &c. under a deed, iggse. 
 which (though in appearance a lease) was in effect a con- 
 trivance to secure the seller of the property interest, at 
 10 per cent., on the amount of the price until it should be 
 paid ; — it was held, that this property (independently of 
 the consideration as to the usurious interest) passed to 
 the assignees, as property, of which the bankrupt was the 
 reputed owner. (2) 
 
 Where utensils of trade, being the separate property of As to pro- 
 one of two partners, and insured in his name, were con- ^"^^ 
 
 ^ ' _ ... "'■e msu- 
 
 sumed by a fire, and afterwards a joint commission issued ranee on 
 
 against both the partners, and the insurance money was ^^P^^'^te 
 
 .,,... . jiropertv 
 
 paid to the joint assignees, — it was held, that the separate in joint' 
 
 estate was entitled to it, and not the joint estate — 'there ^'"'^"P''*" 
 
 . tion. 
 
 being no visible property at the time of the bankruptcy ; 
 
 for after the fire the subject was in reality gone. (3) 
 
 Where goods, being the commodity in which a trader As to 
 
 deals, are purchased of him, and left in his keeping by the chased^""^' 
 
 purchaser, undistinguished from the rest of his stock, — they and left in 
 
 will be considered to be in his possession, order, and dis- ■ V^^^^^- 
 
 (1) Horn V. Baker, 9 East, 215. (3) Ex parte Smith, Buck, 149. ^^ankriipt. 
 
 (2) Sinclair v. Steve^ison, 2 Bing. 
 514. 1 Carring. 582.
 
 410 OF THE ASSIGNMENT [Ch.ll. Pt.Sl. 
 
 Reputed position, within the meaning of the statute ; notwithstand- 
 
 oivnershif). . ,i • ^ n i i • ^ • i 
 . ing there is even a custom or the trade \\\ the particular 
 
 species of goods (which in this instance was that of hops) 
 for the purchaser to leave the goods in the merchant's 
 warehouse, subject to a rent for warehouse room ; for such 
 a custom does not enable other persons, out of that trade, 
 to know that the goods so left are not the property of the (1) 
 possessor. So where A. sold to B. several casks of brandy, 
 some of which, at the time of the sale, were in A.'s own 
 vaults, and others in the vaults of a regular warehouse- 
 keeper; and it was agreed between the parties, that the 
 brandies should remain where they were, until B. could 
 conveniently remove them ; B. then immediately marked 
 the several casks with his initials, and it was notorious t6 
 the persons carrying on the wine trade at the place where 
 the parties lived, that the sale had taken place ; but no 
 notice of the sale was given to the warehouse-keeper, with 
 whom some of the casks were deposited : — under these 
 circumstances it was held, upon A.'s bankruptcy, that the 
 whole passed to his assignees, as being in his order and 
 disposition ; for that it was not sufficient, that the change 
 of property was known only to persons in the mme trade, 
 — but the transfer ought to have been known to all other 
 persons, who might, in consequence of the bankrupt's con- 
 tinued possession of the brandies, have been induced to 
 give him credit. (2) 
 Goods These cases, however, are somewhat at variance with 
 
 and'^lefr ' ^^^'^ others in the Court of Chancery ; one of which was 
 decided by Lord Hardwicke, and the other by the present 
 Vice-Chancellor. In the first of these, the facts were, that 
 two-thirds of a quantity of tar (then lying on the quay at 
 Liverpool) were purchased of the bankrupt, and the whole 
 was, pursuant to agreement, put into the bankrupt's ware- 
 house, until the purchaser should give orders for shipping 
 
 ( 1 ) Thacklhwuite v. Coc/f,5Taunt. A. 1 54. ; and see Mucldow v. Man- 
 487. ' g/es, 3 Taunt. 5 18. post. 
 
 (2) Knoivles v. Ilorsfall, 5 B. &
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 411 
 
 the same ofF as opportunity offered, and the purchaser Whatpos- 
 also duly paid for the tar; — upon which Lord Hardwicke ^ ^^'"""' 
 held, that as the possession of the tar was merely a 
 temporat-y custody, it could not with any propriety be said 
 to be in the order, disposition, or power of the bankrupt. (1) 
 This case was cited in argument in the above case of 
 Knawles v. Horsfall, and was attempted to be distinguished 
 from that, on the ground, that in this the goods were to 
 be left in the possession of the bankrupt only until they 
 could be conveniently shipped; but in that case, also, the 
 brandies were only to remain with the vendor, until the 
 vendee could conveniently remove them. There does not, 
 in truth, seem any material difference between the two cases, 
 — except, indeed, that the circumstances in Knoiioles v. Hois- 
 fall were, upon the whole, more in favour of the purchaser ; 
 for in that case the casks were marked with the purchaser's 
 initials. In the other case alluded to, which was before 
 the Vice-Chancellor, a pipe of wine had been purchased of 
 the bankrupt, and, after being bottled off, was set apart in 
 a particular bin in the bankrupt's cellars, distinct from the 
 rest of his stock, each bottle being marked with the pui'- 
 chaser's seal, and entered in the bankrupt's books as be- 
 longing to the purchaser ; and in this case Sir John Leach 
 thought, that the wine was not in the possession of the 
 bankrupt under such circumstances, as w^ould deceive his 
 creditors, by any appearance of its forming part of that stock, 
 to which they might give credit. (2) And this, after all, ap- Criterion 
 pears to be the true criterion for determining every case "^f *jeter- 
 oii-ejputed ownershij) ; for, if the goods are so distinguished cases of 
 by the mark of the true owner, or so separated from the this na- 
 rest of the bankrupt's stock, as to render it impossible for 
 any person dealing with him to be deceived by any appear- 
 ance of property in the bankrupt ; then, it is apprehended, 
 upon no principle whatever can the goods be saitl to be in 
 
 (l) Ex parte Flyn, 1 Atk. 185. (ii) Ex parte ManaOle, 1 G. & 
 
 J. 402.
 
 412 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Reputed 
 ownership. 
 
 Goods at 
 a whai-f in 
 harikrupC s 
 name. 
 
 Contra, if 
 transferred 
 into the 
 name of 
 the pur- 
 chaser. 
 
 Or if 
 order for 
 the deli- 
 very 
 
 the possession of tlie bankrupt, as reputed o-d)ner, at the time 
 of his bankruptcy. 
 
 But all goods lying at a *mliarf in the bankrupts name, 
 and for which he is liable for rent to the wharfinger, or 
 over which he exercises any control on any part of the day 
 of the bankruptcy', are held to belong to him as reputed 
 owner ; though it may be different, if the goods are lying 
 there in the name of his agent, and the bankrupt himself 
 has no reputation of ownership attaching to them. (1) 
 
 But if the goods are transferred into a purchaser's name 
 in the wharfinger's books, at any time before the act of 
 bankruptcy, then the reputation of ownership in the bank- 
 rupt is rebutted. Thus, where the purchaser of goods, 
 then lying at a wharf in the name of the vendor, re- 
 ceived from him an order on the wharfinger for their 
 delivery ; though the order was not, in fact, carried to the 
 wharfinger for several months afterwards (during which 
 period the vendor had actually disposed of a part of 
 the goods), and the vendor became bankrupt only nine days 
 after the wharfins;er had transferred the remainder of the 
 goods into the name of the purchaser, — yet, as the transfer 
 was made in the wharfinger's books previous to the bank- 
 ruptcy, it was held, that a complete change of the property 
 had taken place; and that the assignees were not entitled 
 to the remainder (2) of the goods. So, where a creditor, 
 who had blank delivery notes on a wharfinger deposited 
 v/ith liim by the bankrupt to cover advances, filled up the 
 blanks with his own name, and took possession of the 
 goods only the very day before the act of bankruptcy, he 
 was held entitled to the goods against the assignees, (y) 
 
 And, after a written order by the vendor for the delivery 
 of the goods is merely communicated to the \i>harjinger, and 
 assented to by him — though no actual transfer be made 
 
 (1) Arbouin v. Williams, 1 Ry.& 
 M. 72. ; and see Taylor v. Ilobin- 
 S071, 8 Taunt. 648. 2 Moore, 750. 
 
 (2) Jo7ies v. Dwyer, 1 5 East, 21. 
 
 (3) Arbouin v. Williams, supra.
 
 Sect. 5.] AS TO PERSONAL rROPERTY. 413 
 
 in his books — the property has been held to pass to the (1) What pos- 
 
 vendee. Therefore, where warrants of the West India ^ ^^^'°"' 
 
 Dock Company (for sugars deposited in tlieir warehouses) shewn and 
 
 were exhibited by a purchaser to the clerk of the com- f^^^"*'^'* 
 *i 1 1 - T to by the 
 
 pany, — this was holden sufficient to divest the seller of whar- 
 
 any reputed ownership, though no adual transfer was made ^"o^r- 
 
 in the company's books. (2) 
 
 Where it is the known practice of a public company. Or where 
 
 to deliver soods to the mere holder of their warrants, '^*^'^'^'"y 
 t' _ ' warrants, 
 
 without any indorsement on the warrant by the original (transfer- 
 owner of the goods, — in that case, the bare possession of ^^'^.^^""- 
 the warrants by any one, to whom they are delivered for dorse- 
 a valuable consideration, is sufficient to rebut a case of P^^"*^') ^^^ 
 reputed ownership in the person, to whom the goods ori- hands of a 
 
 cinallv belonged. Thus, where a trader had pledged for ^°^f\fi^^ 
 
 . I o nolder. 
 
 value warrants for goods in the East India Company's ware- 
 houses — (which warrants are current in the market, and 
 transferable without indorsement, and the goods are de- 
 livered to the person who brings the warrants to the ware- 
 house) ; and the trader became bankrupt whilst the warrants 
 wei"e in the possession of the pawnees ; — it was held, that 
 the goods were not in the possession, order, and dispo- 
 sition of the bankrupt at the time of the bankruptcy. (3) 
 
 But, where a captain in the East India Company's service As to pro- 
 assigned his privilege (which consists in shipping goods '^^^'^a^ e 
 to the extent of a certain tonnage from the East Indies captain in 
 to England) to one Taylor for a valuable consideration, in ^^ 
 
 breach of an express law of the Company, which prohibits pany's ser- 
 vice. 
 
 (1) Lucas V. Dorrien, 7 Taunt, seem, that the dock warrants hav- 
 278. 1 Moore, 29. Harman v. Aii' ing been once exhibited by the 
 dcrson, 2 Camp. 245. holder to the proper officer of the 
 
 (2) Ibid. Spear v. Travers, company, are in themselves the 
 4 Camp, 251. It was observed by true symbols of the ownership of 
 the special jury in this case, that, the goods. And, indeed, they are 
 in practice, the indorsed dock war- now declared to be so by the 
 rants are handed from seller to recent act of 6" G. 4. c. 94. s. 2,; 
 buyer, as a complete transfer of and see post, " Lien." 
 
 the goods. (4 Camp. 255. ; and see (.j) Greening v. Clark, 4 B. & C. 
 8 Taunt. 290. Per Dallas J.) In 316. 
 all these oases, therefore, it should
 
 414. 
 
 OF THE ASSIGNMENT [Cll. 11. Pt.2. 
 
 Reputed 
 oivnership. 
 
 Goods 011 
 sale or 
 return, 
 pass to 
 assignees. 
 
 Special ex- 
 ception. 
 
 Tliere may 
 be an 
 usage of 
 this kind. 
 
 Meaning 
 of the 
 contract. 
 
 such assignments ; — and in order to evade this law, the 
 goods were shipped, entered, warehoused, and sold by 
 Taylor in the cajitaiiUs name, and the proceeds carried to 
 his account — but, before they were handed over by the 
 Company, the captain became a bankrupt — and Taylor 
 was in possession of no document, which he could have 
 carried to market for the purpose of disposing of the 
 goods, or the proceeds ; — it was held, in this case, that the 
 assignees were entitled to recover the amount, in an action 
 for money had and received against the East India Com- 
 pany — the proceeds being considered to be within the 
 order, and disposition, of the bankrupt at the time of the 
 bankruptcy. (1) 
 
 Where goods have been bought by a bankrupt upon 
 sale or return — such goods, when in his possession at the 
 time of his bankruptcy, are held to pass to his assignees ; 
 as they appear to the world to be his property, and are 
 calculated to give him a delusive credit. (2) But where 
 goods were sent from London to Sunderland, on sale or 
 return, with directions to the buyer to return such of them 
 as xoere not approved of by him, in as short a time as pos- 
 sible ; and the goods arrived at the shop of the buyer only 
 the day before he committed an act of bankruptcy; — it 
 was held, under these circumstances, that the goods did 
 not pass to his assignees, as a reasonable time had not 
 elapsed after the arrival of the goods, to enable the buyer 
 to select such, as he might be disposed to retain. (3) There 
 may be an usage, also, in a particular trade, to send goods 
 on sale or return, though there is no agreement to that 
 effect between the parties ; but then the usage must be 
 certain, and must be strictly proved. (4) The meaning of 
 such a contract or usage is, not to place the purchaser 
 upon the footing of a factor — though he, like a factor, until 
 
 (1) Gordon v. E. I. Company, 
 7T.R. 228. 
 
 (2) Livesay v. Hood, 2 Camp. 
 83. Sed vide per Abbott C. J. 
 Dcknmay v. Barker, 2 Star. 542. 
 
 (3) Gibson V. Bray, 8 Taunt. 76. 
 1 Moore, 519. 
 
 (4) Wood V. Wood, 1 Carr. 59.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 415 
 
 lately, had no authority to pledge (1) — but to vest the What ])os-' 
 
 property of the goods in him so far, that he may sell them '_ 
 
 either for money or credit, and receive the proceeds ; — 
 and if he is unable to sell them, the vendor cannot call 
 upon him for the value of the goods — but has only a right, 
 if his bankruptcy does not intervene, to reclaim them in 
 specie. (2) 
 
 When goods, however, are ojice delivered to a vendee When 
 upon an ordinary contract of sale, the property is wholly goo'^^ sold 
 
 are once 
 
 changed by the delivery, notwithstanding the goods may be delivered, 
 
 obtained by the vendee, even with intent to defraud the vendor property 
 
 of the price ; and the latter cannot take them back, after an ° 
 
 act of bankruptcy committed by (3) the vendee; though, 
 
 perhaps, if the goods had been obtained by the vendee 
 
 under false pretences, then the vendor might recover them 
 
 back from the vendee, or his assignees. (4) And a delivery Delivery 
 
 of goods cannot he qualified by any secret stipulation between '^^" V-^*" v^ 
 
 the vendor and purchaser, so as to defeat the claims of the by secret 
 
 assignees of the purchaser, in case he becomes bankrupt ; stipula- 
 
 nor, even though the goods are not actually delivered, will p^„.chaser 
 
 any secret stipulation have that effect, if the vendee be per- having 
 
 mitted to exercise sucli a control and management over the ^°"'''*' 
 
 . over goods, 
 
 goods down to the time of his bankruptcy, as to give him equal to 
 the appearance of being the real owner. Thus, where a 'lelivery. 
 bankrupt had entered into an agreement, that in the event 
 of his becoming bankrupt, or insolvent, before payment 
 made of a quantity of standing timber purchased by him, 
 that the vendor should retake the same, — it was held, 
 that if the bankrupt had the order and disposition of the 
 timber, it would pass to his assignees. (5) 
 
 , (.1) See now 6 G. 4. c. 94. s. 5. 176. The circumstance of the 
 
 post, " Lien." property in question in this case 
 
 ' (2) Per Gibbs C. J. 1 Holt, 55Q. being part of the freehold, and 
 
 (.3) Alilward v. Forbes, 4 Esp. therefore not within the provision 
 
 171.; but see post. of the statute (which applies only 
 
 (4) Gladstone v. Hadtven, I M. to jiei-sonal property/), does not 
 &S. 517.; and see post. appear to have been adverted to. 
 
 (5) Holro^d v. Gwj/une, 2 Taunt. Sec ante, 405.
 
 416 
 
 OF THE ASSIGNMENT [CIl.ll. Pt.2. 
 
 Reputed 
 ownership. 
 
 Where 
 property 
 removed 
 on eve of 
 bank- 
 ruptcy. 
 
 News- 
 paper as- 
 signed, 
 without 
 affidavit of 
 change of 
 interest. 
 Share of a 
 director in 
 a public 
 company. 
 
 It has been held in one case, that if the real owner of 
 property, such as household furniture, permits it to remain 
 so long in the possession of the bankrupt, as to give him 
 the reputed ownership of it in the opinion of all who 
 deal with him; and the owner only takes possession of it 
 the day before the bankruptcy, — that such re-possession is 
 fraudulent against the creditors (1); and that the property 
 passes to the assignees. But we have already seen, that in 
 a case of property lying at a wharf, where it did not appear 
 that persons were deceived by any apparent ownership of 
 the bankrupt, and the real owner only took possession of 
 it one day before the bankruptcy, that the transaction was 
 not impeached on that account. (2) Though, where the re- 
 moval of the property takes place on the very same day on 
 which an act of bankruptcy is committed — notwithstanding, 
 in point of time, it is really before the actual commission of 
 it — then it has been held, that the rights of the assignees 
 attach. (3) 
 
 Where the printer and publisher of a newspaper assigned 
 his interest in it to a creditor, as a security, but continued 
 to print and publish it as before, and no affidavit of the 
 change of interest was delivered to the commissioners of 
 stamps, — it was held, on his bankruptcy, that the right to 
 the newspaper passed to his assignees. (4) So, where a 
 director of a public company assigned his shares to the 
 company, in order to secure a debt due from him on his 
 private account ; and empowered the company to direct the 
 treasurer to retain the dividends, and sell his shares for 
 the payment of his debt; but the power given to the com- 
 pany had not been exercised, and his share still remained 
 in his name ; — it was held, that on the bankruptcy of the 
 director the shares passed to his assignees, as being in his 
 order and disposition ; but that the company had a right 
 
 (1) Barbi/ v. Smith, 8 T. R. 82. 
 
 (2) Arbouin v. Williams, 1 Ry. & 
 M. 72. Ante, 412. 
 
 (3) Ibid. 
 
 (4) Longmanv. Ti'ipf), 2^.^.61 ,
 
 Sect. 5.] AS TO PERSONAL mOPERTY. 417 
 
 to set off the bankrupt's debt, against the dividends due to Whatpos- 
 , . 1 . I 1 ,, \ session. 
 niiTi at his bankruptcy. (1) 
 
 Where the bankrupt had a patent for an invention, and, Patent, 
 
 after having mortgaged his right in it, continued in the patentee 
 
 notorious use of the invention until his bankruptcy, — Lord continues 
 
 Eldon was inclined to think, that the right passed to the ?'° "^t-* ^ 
 
 ' ... invention. 
 
 assignees ; but he directed a case for the opinion of the Court 
 
 of King's Bench ; — which, however, was never argued. (2) 
 
 The possession of the bankrupt, in order to bring a Possession 
 
 case within the statute, must be xmth the consent and -per- ^ i^ank- 
 
 ' ^ ^ nipt must 
 
 mission of the true owner. (3) Therefore, where stock be with 
 
 standing in the name of the accountant-ffeneral was mort- «""^"^ v 
 , ^ trueowncr, 
 
 gaged to secure a debt, and the accountant-general after- 
 wards, xmthout the priviti/ of the mortgagee, transferred the 
 stock to the mortgagor, — it was held, that it did not 
 pass to the assignees on the bankruptcy of the mort- 
 gagor. (4) 
 
 So the property of infants^ who are not capable in law As to pro- 
 of giving consent, is not affected by a case of reputed P^^'ty/** 
 omnership. (5) But where a trustee for infants contracted 
 to sell goods, and he afterwards let the purchaser into 
 possession, — in this case, the property was holden to be 
 within the statute; the trustee being considered the true 
 legal owner of the property, and the purchaser being in 
 possession with his consent. (6) 
 
 If a bankrupt retains an adverse possession of goods Adverse 
 up to the time of his bankruptcy, so that the party entitled possession. 
 to them could not obtain the possession, or restrain him 
 from disposing of them, without suing him in a court of 
 justice, — such a possession of the bankrupt will, of course, 
 not be within the meaning of the statute ; as this is against 
 " the consent and permission of the true owner." (7) 
 
 (1) Nelson v. London Assurance (4) Ex parte Richardson, Duck, 
 Company, 2 Sim, & S. 292. 480. 
 
 (2) Ex parte Granger, Evans's (5) Viner v. Cadell, 5 Esp. 88. 
 Statutes of Bankruptcy, 64. (6) Ex parte Bale, Buck, 365. 
 
 (3) West v. Skip, 1 Ves. 243. C') West v. Skip, supra. Lift v. 
 
 Cowky, 7 Taunt. 169. 
 
 E E
 
 418 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Reputed 
 ownership. 
 
 Where a 
 secret 
 partner, — 
 all the 
 property 
 passes to 
 assignees 
 of osten- 
 sible 
 partner. 
 
 Where 
 property 
 cannot be 
 delivered. 
 
 Ships at 
 
 In the case of a secret j)ortnership between the bankrupt 
 and another person, where the stock in trade is in the sole 
 possession of the bankrupt, — Lord Alvanley upon an 
 occasion of this kind expressed great doubt, whether 
 the claim of the secret partrier to a share in the joint 
 property could be sustained, against the claims of the 
 assignees. (1) And, indeed, a possession of property 
 under these circumstances, seems to come within the 
 very terms of the above enactment as to reputed owner- 
 ship. The Court of Exchequer, however, in a case of this 
 description determined, that the claim of the secret partner 
 was sustainable (2) ; though Lord Eldon, on a subsequent 
 occasion, intimated a strong opinion to the contrary, but 
 reserved the decision of the point for the assistance of those 
 Barons, who had concurred in deciding in favor of the 
 claim of the secret partner. (3) This point, however, ap- 
 pears now to have been finally settled by the Court of 
 King's Bench, upon a case lately sent for its opinion by the 
 Lord Chancellor; in which the judges unanimously agreed, 
 that where there was a secret partnership, all the property 
 and effects, as well as the debts due to the concern, must 
 be deemed to be in the order and disposition of the ©stent- 
 sible partner, — and therefore passed to his assignees. (4?) < 
 
 Where property is of such a nature, that it camwt be ab- 
 solutely delivered {at i\\e time of the contract) to a purchaser, 
 then it will be sufficient, if those documents and instru- 
 ments relating to it are delivered, which will enable him to 
 reduce the property into possession. Thus, in the case of 
 ships at sea, and their cargoes, of which an absolute de- 
 livery of possession cannot be made, — it will be sufficient, if 
 the bill of sale, or bill of lading, is delivered to the pur- 
 chaser; provided he takes possession of the property, upon 
 the arrival of the ship in port. (5) But, in the case of the 
 
 (1) Blnford v. Dommett, 4 Ves. 256.; and see ex parte Wilson, ex 
 7S(>. ; and see ex parte Barrow, parte Todd, Buck, 53. 
 
 2 Rose, 252. {4) Ex parte Enderbt/, 2 B, & C. 
 
 (2) Coldwell V. Grcgori/, 1 Pri. 589. 
 
 119. (5) Brotvn v. Heatkcote, 1 Atk. 
 
 (3) E\ parte Dyster, 2 Rose, 160.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 419 
 
 sale or mortgaffe of the shiv^ it is necessary, that all the Whatpos- 
 
 SCSSIOTI, 
 
 provisions of the registj'i/ act (l) should be strictly com- 
 
 plied with ; otherwise, the purchaser will not be entitled to 
 hold the ship, as against the assignees of the vendor, or 
 mortgagor. (2) The bill of sale of a ship at sea is held 
 now to pass the absohtfe propnii/ in her, subject only to be 
 divested, in case of the indorsement on the certificate of 
 registry not being made within the proper time (which is 
 now thirty days) after the arrival of the ship in port. (3) 
 And a power of attorney, to sign an indorsement on the 
 certificate, is not revoked by the subsequent bankruptcy of 
 the vendor, — being only a power to do a mere formal act, 
 which the bankrupt himself might have been compelled to 
 execute, notwithstanding his bankruptcy. Therefore, if 
 the indorsement is made within the limited time under such 
 a power of attorney, though after the bankruptcy of the 
 vendor, it will be a sufficient compliance with the terms of 
 the registry act. (4) 
 
 Where the purchaser, however, has an opportunity of But where 
 taking possession of the ship, either by her being at home ^A^'^t^tl'^ 
 at the time of the purchase, or by her returning to port, possession, 
 he must in that case take actual possession ; otherwise, ^ "'"*^ 
 though all the requisites of the registry act are complied \ 
 
 with, the transaction will come within the operation of the 
 above enactment, as to the reputed ownership of the bank- 
 rupt. (5) But though the purchaser do not take actual pos- 
 session as soon as he might, — yet, if the rights of no third 
 person interfere, he may, afterwards, take legal possession 
 
 (1)4 Geo. 4. c. 41. s. 35, 6, 7, &c. (4) Ibid. ; and see Lemprierc v. 
 
 which repeals all the former re- Pas/ei/, 2 T.R. 485. 
 
 gistry acts. (5) Ex parte Mattheius, 2 Ves. 
 
 (2) Mos!' V. Charnocic, 2 East, 272. Wall v. Gurncy, 1 C. B. L. 
 399. Rolleston v. Hibbert, 3 T. R. 342. Atkinson v. Alaling, 2 T. R. 
 406. Rollestojiv. Smith, 4T.R. 161. 462. Mair V. Glcnnie, 4 M. & S. 
 
 (3) Dixon V. Ewart, 5 Meriv. 240, Way v. Fuirbuirn, 2 B. & A. 
 322. Buck. 94. ; and see 4 Geo. 4. 193. Robinson v. Macdonnel, 3 M. 
 c. 41. s. 37.; and post, " Rela- & S. 228. Monkhouse v. Way, 
 tion." 4 Moore, 549. 8 Pri. 256. 2 B. & 
 
 B. 14. 
 
 E E 2
 
 420 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Reputed 
 ownership. 
 
 Where 
 
 purchase 
 only of a 
 share. 
 
 Where 
 ship con- 
 tracted to 
 be built, 
 and re- 
 gistered in 
 name of 
 purchaser. 
 
 Where a 
 barge 
 built, but 
 not deli- 
 vered. 
 
 of the ship — if he does so before the bankruptcy of the per- 
 son, who executed the bill of sale to him. (1) And if, at 
 the time of the sale, the ship is in any foreign jiort, then 
 the purchaser need not take actual possession of her ; and 
 the port of Z)Mi/m is, in this respect, considered a foreign 
 port. (2) 
 
 Where the purchase is only of a share in the ship, then 
 the delivery of the bill of sale of such share (provided the 
 requisitions of the registry act are in other respects com- 
 plied with) will be a good delivery to vest a title in the 
 purchaser. (3) And in a case where a ship-builder con- 
 tracted to build a ship to be paid for by four instalments, 
 three of which were paid — and he then signed the usual 
 certificate in order to have the ship registered — and the 
 ship "iSas accordingly registered in the name of the pur- 
 chaser — but was not then completed or launched, and was 
 still in the possession of the ship-builder ; — it was decided, 
 that the legal effect, of the ship-builder's having signed the 
 certificate for registry in the name of the purchaser, was to 
 vest the general property in the ship, from the time the 
 registry was completed ; — and that the ship was not in the 
 possession (4) of the bankrupt, as reputed owner. But 
 where a barge, (which is not required to be registered) after 
 being completed, remained in the boat-builder's hands — 
 though the purchaser's name was painted on the stern, and 
 he had advanced money as the building of it went on, to the 
 full value of the barge — but the builder had done no act 
 expressing an unequivocal consent, that the general pro- 
 perty should be considered as vested in the purchaser ; — 
 in this case it was held, that, as there had been no actual 
 delivery io the purchaser, the property (5) was in the order 
 and disposition of the bankrupt. 
 
 (1) Robinson v. Macdonnel, 2 B. 
 & A. 1.54. 
 
 (2) Ex parte Batson, 1 C. B. L. 
 345. 
 
 (3) Ex parte Standgroom, 1 C. 
 B. L. 348. iVcs. 1G3. : and sec 
 
 Gillcsjnc V. Confts, Amb. 652. and 
 Ha/l V. Gurnei/, 1 C. B. L. 342. 
 
 (4) Woods V. Russell, 5 B. & A. 
 942. 
 
 (5) Mucldowv. Mangles, 1 Taunt. 
 318.; and see post.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 4.21 
 
 But, though the purchaser forfeit his title to the ship^ as What pos- 
 
 against the assignees of a bankrupt, by neglecting to take 
 
 possession of her whilst she is in port, — he will still be en- Where 
 titled to the produce of a 'policy of insurance on her (which [i"ou„hf^'^' 
 is assigned to him at the time of the bill of sale) in the not en- 
 event of a loss happening to the ship at sea before the *-|^.'-'"*° 
 bankruptcy. (1) And, though the policy was detained by titled to 
 
 the broker who effected it, as a pledfje for a debt owinjj to P°"*^y ^^ 
 
 , , . . , insurance. 
 
 him by the bankrupt ; and the assignees obtained posses- 
 sion of it by paying that debt ; — yet they were held not 
 entitled to retain it against the person to whom it was 
 assigned; as this was considered not such a leaving of the 
 policy in the hands of the bankrupt, as to give him the 
 entire order and disposition of it. (2) 
 
 Under a commission of bankrupt against two partners. Ship re- 
 ships registered in the name of one of them, but in the S^'^'^i'*^'*^" 
 
 ^ . ^ . . . name of 
 
 ordering and disposition of both, are held to form part of one part- 
 
 the joint estate. (3) "^'■• 
 
 An executory contract for the sale of a ship is within the Executory 
 
 provisions of the register act, and must, therefore, be in- '^o"*''^'^^' 
 
 dorsed on the certificate of registry. (4) 
 
 Where the transfer of the ship, however, is not an ahso- Where 
 
 lute transfer, but merely made as a securih) for a debt, or ^'^''^ mort- 
 1 c 1 1 , s 1 1 S^gf-'d, not 
 
 by way or mortgage^ then, as we have seen (5), by the pro- a case of 
 
 visions contained in the 72r/ section of the new act, it is reputed 
 
 excepted out of the enactment as to reputed ownership, — ^" 
 
 provided those requisitions of the registry act are complied 
 
 with, which relate to ti'ansfers of ships by way of mortgage. 
 
 And by the new register act (4 Geo. 4. c. 41. s.43.) it is 
 
 now expressly declared, that the person to whom such 
 
 security or mortgage shall be made, shall not, by reason 
 
 thereof, be deemed to be the owner of the ship or vessel, 
 
 or of the share so transferred, nor will the person making 
 
 (1) i^a/Ancrv. Case, cited 2 T.R. (4) Mortimers. Flccming, 4 B. 
 491. «S:C. 120. 
 
 (2) Ibid. 1 Bro. 12.5. (5) Ante, 402. 
 
 (3) Ex parte Burn, 1 Jac. & W. 
 378. 
 
 E E 3
 
 422 
 
 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Reputed the transfer be deemed to have ceased to be an owner, ex- 
 o wncis ij ). ^^^^ g^ ^^^ ^g j^^y. 1^^ necessary for the purpose of render- 
 ing the ship, or tlie share so transferred, avaihible by sale 
 or otherwise for the payment of the debt, for securing pay- 
 ment of which such transfer shall have been made. And 
 by the ^Uh section of the same act it is also provided, 
 that when any such transfer shall have been duly registered, 
 the right of the mortgagee shall not be affected by any act 
 of bankruptcy committed by the mortgagor after the time 
 of such registry, notwithstanding the mortgagor, at the 
 time he became bankrupt, had in his possession, order, 
 and disposition, and was the reputed owner of, the ship, or 
 the share so mortgaged; but such mortgage shall take 
 place of, and be preferred to any right of the assignees of 
 such bankrupt in such ship or share so transferred. (1) 
 
 And in all cases, where the best delivery is made upon the 
 sale of goods, which the nature of the property sold, and 
 ade7that the circumstances under which it is sold, will admit, the case 
 will then not be considered as one of reputed ownership. 
 wHl admit. Thus, where the bankrupt contracted with a canal company 
 to build locks and bridges on the canal as their engineer, 
 and purchased timber and other materials for the purpose, 
 which were laid on the company's premises ; and, on the 
 company advancing money to him, they took a bill of sale 
 of these goods, and a nominal delivery of them by a half- 
 fenny ; — it v/as held, that the bankrupt had not, under these 
 circumstances, such a possession of the timber, as would 
 enable the assignees to claim it in opposition to the bill of 
 sale ; for that, the timber being before the sale on the com- 
 2}any s premises, the best delivery was given of it, which the 
 circumstances would admit. (2) 
 When Whenever a chose in action is assigned, the security, if 
 
 chose m there be one, must in all cases be delivered over at the 
 action as- ' ^ a i • i i i 
 
 signed, the time of such assignment. And, m order completely to 
 
 security divest the bankrupt of the ownership of debts, he must, in 
 
 So where 
 the best 
 delivery 
 m 
 
 circum- 
 stances 
 
 (1) See ante, 40.3. note(l). 
 
 (2) Mantonv. Moorej 7 T.R. 67.
 
 Sect. 5.'J AS TO PERSONAL PROPERTY. ^/03 
 
 assi'jjninff them, have done every thing that is equivalent to Whatpda- 
 
 SCSSlOtl 
 
 the delivery of chattels personal. (1) Tims a boiiclf when '_ 
 
 assigned, must be delivered up to the assignee. (2) But, in must be 
 the case of mere book-debts, there is nothing that can be °^^^" "P' 
 delivered ; except, indeed, when one partner assigns all his 
 share in the partnership debts to the other ; in which case 
 the deed of co-partnership must be delivered up. And and notice 
 whenever a debt is assiijned, notice of the assignment must S'^^'i to 
 be given to the debtor, whether there is a security for the tor. 
 debt, or not (3); for otherwise the obligee — in the case of 
 the bond — or indeed any other assigning creditor, would 
 be enabled to obtain payment of the debt, — which is tanta- 
 mount to leaving it in his order and disposition. There- 
 fore, in the event of a dissolution of partnership, notice in 
 the Gazette of such dissolution has been held not sufficient 
 notice to the partnership debtors, unless it could be reason- 
 ably inferred that they had seen it. (4) 
 
 Where the bankrupt (upon borrowing a sum of money) Money in 
 drew an order, in favor of the lender, for payment of the h^.'^^Js of 
 money out of a particular fund due and to become due to son al- 
 
 him, and the order was deposited by the payee with the ready 
 
 , . T . T 1 1 • 1 • drawn for 
 
 person on whom it was drawn, — it was lield, m this case, by bank- 
 that the money did not pass to the assignees, but was to ™pt- 
 be appropriated to the payment of the order. (5) So an Accom- 
 
 accommodation acceptance, in the hands of the drawer at the '"^''^^t'o'^ 
 
 . . accept- 
 
 time of his bankruptcy, does not pass to his assignees ; and ance. 
 
 may, therefore, be indorsed by him after he had committed 
 
 the act of bankruptcy. (6) 
 
 The possession of a carrier^ by whom the bankrupt Possession 
 
 sends money or goods to a creditor, does not alter the 
 
 of a car- 
 rier. 
 
 (1) Per Sir W. Grant, Jbne* v. S Swanst; .59.5. Ex Y>^rte Alderson, 
 Gibbon, 6 Ves. 410. 1 Mad. 53. 
 
 (2) Ri/alv. Rowles, 1 Ves. 348. (4) Ex parte Osborne, 1 G. &J. 
 1 Atk. 171. 356. 
 
 (3) Ibid. Ex parte MoMro, Buck. (5) Row v. Datvson, 1 Ves. 331. 
 500. Ex parte ^Mr/o7i, 1 G. & J. (6) Wallace v. Hardacre,! Camp, 
 207.; and see ex parte South, 46. JFtV/ii- v. Freeman, 12 East, 
 
 656. 
 
 E C 4
 
 424 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Reputed property ; for, the possession of the carrier is, in this re- 
 o wners ip . ^^^^^^^ ^.j^g possession of the bankrupt. Therefore, where 
 the bankrupt shortly before his bankruptcy drew a billy, 
 and after procuring it to be discounted, gave a creditor an 
 order to receive the amount, which he directed A. (who • 
 discounted the bill) to transmit to the creditor; and whilst ' 
 the money was in the hands of the carrier, the bankrupt 
 committed the act of bankruptcy, — the creditor, who after- 
 wards received the money, was held liable to refund it to 
 the assignees. ( 1 ) 
 Where an In a case, where a bankrupt bought his own stock in 
 cat^d ' ' trade of his assignees, and sureties joined in a security to ' 
 bankrupt them for the consideration ; and the bankrupt continued to ' 
 
 bought his ^YSide for four years afterwards, and then died without > 
 own stock. . . , . 
 
 having obtained his certificate, having contracted fresh 
 
 debts subsequent to his bankruptcy, — Lord Camden held, 
 »r that the subsequent creditors were to be preferred to the'- 
 
 creditors under the commission. (2) But Lord Eldon, in 
 observing upon this case, said, that it had never been con- 
 sidered of very high authority ; for that, unless the bankrupt 
 had purchased the stock with the money of a third person, 
 it was purchased with that which was the property of the 
 assignees, — and, in that case, the sale would have been with-i'^ 
 Where out consideration. (3) And where a bankrupt (who had'^ 
 bankrupt obtained his certificate) was employed by the assignees, as 
 to occupy their agent, in getting in the debts; and was permitted by 
 his house them to remain in possession of his furniture, household ^ 
 tureasthe goods, and plate, and to continue to inhabit his house fo?' 
 agent of nearly five years, in order the better to assist the assignees • 
 ^ ' in settling his affairs, during which time be engaged in J^ 
 trade on his own account; but in all the statements of his^ 
 estate and effects, which were laid before his creditors at * 
 different periods, the furniture, &c. (which had been in-^^ 
 
 (1) Harvey V. Liddiard, 1 Star. (3) Ex parte Martin, 15 Ves. 
 123. 116. 
 
 123. 
 
 (2) Troughton v. Gitley, Ainb. 
 630.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 425 
 
 ventoried and valued immediately after the commission Whatpos- 
 
 issued) was included : a second commission having issued * '__ 
 
 against him, — the question was, whether his possession 
 under these circumstances was not such, as entitled the 
 assignees under the second commission to the goods, as 
 being in his order and disposition as reputed owner, — 
 and the Court of King's Bench held that it was not. (1) 
 Where, also, an uncertificated bankrupt hired a shop, and 
 carried on business there for some time, living with his 
 son, and goods were supplied in the name, and on the 
 credit, of the son — though, in one or two instances, the 
 father had guaranteed the payment — it was held, that 
 the goods under these circumstances did not belong to the 
 assignees. (2) 
 
 And it has been recently decided, that goods, which Where 
 (with the consent of the true owner) come to the possession ^^^^ ^^ 
 of the bankrupt after he becomes hanJcrupty do not vest in bankrupt's 
 the assignees under the above provision as to reputed "^^H^^^^J^ 
 ownership ; and a person " becomes a bankrupt" on com- hank- 
 mitiing the act of bankniptcy^ which is followed up by a ''^P^^^* 
 commission. (3) 
 
 So, the bare possession of goods entrusted to the Possession 
 bankrupt for a specific pm-poscy without any power given °^ goo"s 
 him to dispose of them, is not sufficient to make it a case cific pur- 
 of reputed ownership — unless the owner has been guilty of P^^^- 
 laches, in permitting them to remain so long in the bank- 
 rupt's possession, or under such circumstances, as to give 
 him a reputed ownership — and thus enable him to gain 
 a false credit. (4) Therefore, a carpenter who receives 
 timber to convert into a waggon, or a tailor to whom cloth 
 is delivered to be worked up into clothes, have neither of 
 them such a possession of the timber, or the cloth, as 
 will constitute him a reputed cwner of it within the 
 
 meaning of the statute. (5) And even if money be left with Or of mo- 
 ney, if 
 
 (1) Walker v. Burnell, Doug. (5) iyon v. JFie/rfoH, 2 Bing. 334. 
 303. (4) West V. Sk'q}, 1 Ves. 243. 
 
 (2) Davis V. Living, 1 Holt. 275.; ^5) Per Ashurst J., 3 T.R. 323. 
 and see Staffordv. Clark, 1 Carr. 24.
 
 426 
 
 OF THE ASSIGNMENT [Ch.ll.Pt.2: 
 
 Reputed 
 ownershij) : 
 FACTOR. 
 
 kept se- 
 parate. 
 Or of a 
 banker's 
 cheque, 
 not within 
 the sta- 
 tute. 
 
 Timber 
 supplied 
 for par- 
 ticular 
 works. 
 
 a bankrupt, for a •particular 'purpose, provided it be kept 
 apart from his general property, — that also cannot be 
 claimed by his assignees ; as in the case of an overseer of 
 the poor, who kept the money received by him in that 
 capacity distinct from his other effects. (1) And where a 
 friend agreed to lend a bankrupt 200/., to be applied to a 
 specific pmpose, and placed in his hands a cheque on his 
 bankers for that amount, and the bankruptcy took place 
 before the cheque was paid, — it was held, that the assignees 
 had no right to the cheque. (2) So, where a merchant 
 bought and shipped timber in his own name to one of the 
 King's yards, where it was delivered for the use of the 
 bankrupt (a carpenter), who had contracted to perform 
 some works there, and who was secretly an ajjent of the mer- 
 chant, — it was held, that as the timber was delivered only 
 for the purposes of the contract, and as there was no sale of it 
 to the bankrupt, the renl property was in the merchant; and 
 that, as there was no fraud in the transaction, the bankrupt's 
 assignees were not entitled to it ; for though the bankrupt 
 liad the apparent, he had not the absolute disposition 
 of it. (3) 
 
 3. Possession as Factor {^'), Banker, or Broker. 
 
 Factor's The possession of goods by the bankrupt as Factor — 
 
 possession though he has the power of immediately selling, or pledg- 
 
 of reputed i"g(5), them, and taking the money — is (for the benefit of 
 
 ownership, trade) held not such a possession, as will constitute a case of 
 
 reputed ownership ; for his possession of the property is, 
 
 only, under a bare authority to sell it for the principal, and to 
 
 account to him for the proceeds. A Factor, indeed, stands 
 
 in the situation of a trustee with his principal ; and what- 
 
 {\) Rexy.EggintonflT.R.ZlO. 316.; but see 7 T. R. 237., per 
 
 (2) Moore v. Barthrop, 1 B. & Lawrence J. 
 
 C. 5. (4) And sec post, " Lien." 
 
 (3) Collins V. Forbes, 5 T. R. (5) See 6 G. 4. c. 94.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 42f 
 
 ever property he has in his possession in that character at Reputed 
 the time of his bankruptcy, and which can be distinguished '^p"i^tor^' 
 from his own, belongs to his principal, and does not pass ^'c- 
 by the assignment. (1) And even if the goods be sold and 
 reduced into money, provided the money be in separate 
 bags, or in other respects distinguishable from the rest of 
 the factor's property, (as in the case of the overseer before 
 mentioned (2) ) — the principal, and not the assignees, will 
 be entitled to it (3) ; for the dictum, that money has no ear- 
 mark, must be understood to apply only, in a case of an 
 undivided and undistinguished mass of current money. (4) 
 So, if the factor receives notes or bills, instead of money — 
 or buys other goods with the proceeds, — the principal will 
 be equally entitled to the bills, or the goods so bought (5) ; 
 for the product of, or substitute for, the original thing still 
 follows the nature of the thing itself, as long as it can be 
 ascertained to be the very product, or substitute ; and the 
 right of the principal to reclaim it only ceases, when the 
 means of ascertainment fail. 
 
 Thus where a factor, having money of his principal in Factor 
 
 his hands, bought South Sea stock for him, and took the '^"3'^n? 
 
 1 • . • 1 1 • • 1 • ,1 stock m 
 
 stock m his own name, but entered it in his account-book, his own 
 
 as bought for his principal, and afterwards became bank- "^me. 
 rupt, — it was determined, that the stock was not liable to 
 the bankruptcy. (6) 
 
 And the same rule prevails, as to the right of a principal 
 to reclaim substituted pi'operty from a Factor, or Broker, 
 notwithstanding such substituted property has been ac- 
 quired in fraud, and not in pursuance of his trust ; for an 
 
 (1) Burdett v. Willett, 2 Vern. (3) Per Lord Kenyon, Tookew 
 638. UApostre Y. Le Plaistrier, Holli72gworfk, 5 T.R. 21 5. I T. R, 
 cit. 1 P. Wnis.318. Mace v. Cadell, 370. Paul v. Bird, 2 Atk. 621 . 
 Cowp. 233, Ex parte Dianas, (4) sM.&S. 575. per Lord El- 
 2 Ves. 586. 1 Atk. 2.52. Godfrey/ lenborough. 
 
 V. Furzo, sP. Wms. 185. Boddy (5) Ex parte .S'«j/C7-*, 5 Ves. 169. 
 
 \. Esdaile, 1 Carr. 62. Garrat v. Whxtcomb v. Jacob, 1 Salk. 160. 
 
 Cidlum, B. N. P. 42. ; and see 6 G, 4. Scott y. Surman, Willes, 400. 1 x\tk. 
 
 C. 94. s. 5. 254. 
 
 (2) Ante, 426. (6 ) Ex parte Chions, 3 P. Wms. 
 
 186. 4,
 
 rican 
 stock, &c. 
 
 428 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Reputed abuse of trust confers no greater rights on the party, nor 
 ^JfJlZ^l^^' on his assignees, who claim in privity with him. There- 
 
 FACTOR^ "^ i ./ 
 
 ^c. fore, where a draft for money was entrusted to a broker to 
 
 „ r~" buy exchequer bills for his principal ; and the broker re- 
 embezzling ceived the money, and misapplied it, by purchasing 
 
 a dratt, American stock and bullion, intendinfj to abscond with it 
 
 and buy- _ _ " , 
 
 ing Ame- and go to America ; and he did accordingly abscond, but 
 
 was taken before he quitted England, and thereupon sur- 
 rendered to the principal the securities for the stock and 
 the bullion; — the principal was, in this case, held to be 
 entitled to such securities and bullion, as against the as- 
 signees of the broker, who became bankrupt on the very 
 day, on which he so received and misapplied the money.(l) 
 And Lord Ellenborough in his judgment in this case said, 
 that if property, in its original state and form, was covered 
 with a trust in favour of the principal, no change of that 
 state and form can divest it of such trust; or give the 
 factor, or those who represent him in right, any claim of 
 greater validity in respect to it, than they respectively had 
 before such change. (2) 
 
 Neither will the rights of the principal be altered in this 
 respect, though the factor acts under a del credere com- 
 mission ; for this does not deprive the principal of his 
 remedy against the buyer, if there be no payment to the 
 factor (3); but if a factor conceal the name of his principal, 
 and sell in his own name, the buyer has a right then to 
 consider him as the principal, — and will be entitled, in an 
 action by the real owner for the price, to set off a debt due 
 from the factor. (4) 
 When If the goods have been sold by the factor, and are not 
 
 ^h'"kP^' paid for at the time of his bankruptcy, the principal should 
 notice to give notice to the purchaser, not to pay the factor, or his 
 purchaser, assignees ; and if the purchaser will do so in spite of such 
 
 (1) Tai/lor V. Plumer, 5 M. & S. (4) George v. Clagctt, 7 T. R. 
 562. 359. Rabone v. Williams, cit. ib. 
 
 (2) 3M.&S. 574. 360. Bai/lei/ v. Morley, ibid. 
 
 (3) Scrimshire v. Alderton, 2 Str. Stracey v. Beey, ibid. 561.; and see 
 1182. 6 G. 4. 0.94. S. 6.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 429 
 
 notice, he will then be liable to repay the money to the Reputed 
 
 . . 1 1 ownership: 
 
 principal (1); or, if the assignees receive the money, tlie j^^i^ek. 
 
 principal will be entitled to recover the amount from 
 
 them. (2) 
 
 Upon the same principle, too, as that of the right to Banker, 
 reclaim goods from a factor, is founded the right of a cus- 
 tomer to re-possess himself of what are called short bills ; Short 
 that is, bills not due, in the hands of his Banker. For if ^^"^' 
 such bills, or notes, are sent to a banker to be specificalhj 
 applied^ and he becomes bankrupt without having parted 
 with them, they do not pass by the commissioners' assign- 
 ment. (3) But, if the bills are indorsed by the person who 
 deposits them with the banker, and the latter disposes of 
 them before his bankruptcy, though even contrary to good 
 faith, — in that case, they cannot be recovered by the cus- 
 tomer. (4) 
 
 The nature of the interest, however, which the assignees of 
 a Banker possess in bills and notes remaining in his hands at 
 the time of his bankruptcy, depends on the circumstances, 
 under which the bills or notes have been remitted, or paid 
 in, by his customer, — as well as upon the state of accounts 
 between the customer and the banker, at the time of the 
 bankruptcy. If the bills have been discounted with the if tlis- 
 banker, the property is then changed, and they pass to his ^^^ f^ ^^^ 
 assignees with the rest of the effects; or, if he has ad- assignees; 
 vanced money upon them, or accepted other bills for the 
 accommodation of the customer, the assignees will not 
 only have a lien upon all the negotiable securities in the 
 banker's hands, to the amount of such advances or accept- 
 
 {\) Saimshire \ . Aldcrton, &\x^Y^. 2H. B. 501. Parke v. Eliason, 
 
 Eicot v. Mil ward, lC.B.L.378. 1 East, 514. Ex parte Sai/ers, '' 
 
 7 T. R. 56 1 note (b.) 5 Ves. 169. Zincif v. Walker, 2 Bl . 
 
 (2) B.N.P. 42. &o^/!v. .Siirman, 1154. Ex parte ilfarf&oji, 1 C. B. 
 
 supra. Ex parte Murray, C. B. L. L. 384. Hassall v. Smithers, 12 Ves. 
 
 579. 119. Ex parte Smith, Buck, 355. 
 
 (.3) Ex parte Dumas, 1 Atk.235. Ex parte Ji/cen, 2 Mad. 192. 
 
 Ex parte Oursell, Amb. 297. 2 Ves. (4) Col/ins v. Martin, 1 B. & P. 
 
 586. Ex parte Emery, 2 Ves. 674. 648. Bolton v. Puller, ibid. 559. 
 
 Tooke V. Holliiig worth, 5 T. R. 215. Ex parte Pease, 1 Rose, 238.
 
 430 
 
 OF THE ASSIGNMENT [Ch.Il. Pt.2. 
 
 Reputed 
 ownership i 
 BANKER. 
 
 and so 
 where an 
 exchange 
 of accept- 
 ances ; 
 
 except 
 when. 
 
 When 
 must be 
 given up 
 by the as- 
 signees. 
 
 ances, — but may also put the same in suit. And even 
 where, taking into account the bills on both sides, the 
 customer has a balance in his favour, but not equal to the 
 amount of any otie of the bills, — this surplus cannot be 
 appropriated to any ojie bill, in reduction of the claim of 
 the assignees suing any of the parties to such bill. (1) 
 Where the transaction with a banker amounts to an ex- 
 change of acceptances, his assignees are in that case 
 entitled to the bills so taken by him in exchange; — as 
 where a person, with whom a country banker has no pre- 
 vious dealings, applies to him for a bill on London, in 
 return for bills of exchange of the same amount ; though 
 the bill given by the banker be dishonored, yet the bills 
 given in exchange will pass to his assignees. (2) 
 
 But where a customer agreed to pay into a bank (consist- 
 ing of four partners) bills of exchange indorsed, and to take 
 in return their promissory notes — and three of the four 
 partners became bankrupt before the bills were paid in, or 
 their notes taken — and after this was done, then the fourth 
 became bankrupt, — it was held in this case, that the 
 assignees were not entitled to retain the bills so paid in ; 
 the consideration having failed, upon which alone they were 
 parted with. (3) 
 
 So bills paid in generally, to be received when due, 
 and then to be placed to the account of the customer, 
 must be given up by the assignees, — provided the cash 
 account is in favour of the customer, and the banker's 
 estate is not chargeable with any outstanding engage- 
 ments on the customer's behalf. For it is perfectly clear, 
 as a general rule, that if a customer pays bills into his 
 banker's, although it gives him a right to expect that 
 his drafts will be honored to the amount of the bills paid 
 in, yet the jpvjjKrty in the bills is not altered — they still 
 remaining the property of the customer — although the 
 
 (1) Bolland V. Bygrave, 1 Ryan (3) Ex parte M'Gae, 2 Rose, 
 &M. 271. 576. 
 
 (2) Hornblowe?- V. Proud, 2 B. & 
 A. 327.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 431 
 
 banker may have a lien to the extent of his advances. In order Reputed 
 
 to change the property, it must be shown that the banker ^'""^^j^f " 
 
 bouffht the bills — or discounted them — which amounts 
 
 to the same thing. (1) And, though bankers may have 
 
 authority from their customer to discount bills remitted by 
 
 him, to a certain amount, or for certain purposes, — yet this 
 
 will not give them an absolute authority to discount all bills, 
 
 which may be paid in by the customer. Nor, indeed, will 
 
 it make any material difference, that the special authority 
 
 to discount is for an uncertain amount, and one which 
 
 cannot well be ascertained at the time it is given ; — as, 
 
 where the object is to provide a fund to honor the drafts 
 
 or bills of the customer, or to reduce the cash balance, 
 
 when the bankers should be in advance. (2) 
 
 Bills not due, which are entered sJiort in the banker's Bills e?z- 
 
 books, are always considered to be the property of the ^^^^^^hort, 
 
 customer; and must be specifically returned to him, if the given up. 
 
 cash account is in his favour. But, if they are paid in by Contra, 
 
 the customer as cash, or are entered as cash with his know- -^^ f" P^l 
 ' in 05 cash,. 
 
 ledge or consent, deducting the discount, — and he thereupon 
 draws, or is entitled to draw upon the bankers, as having 
 that credit in cash, — it has been decided by Lord Eldon, 
 that the customer will be precluded from recurring to the 
 bills specifically; and that such knowledge or concurrence, 
 on the part of the customer, may be inferred from the usual 
 mode of dealing between the parties. (3) But, notwith- But if en- 
 standing the customer has permission to draw on the ^?,, ,°* 
 bankers to the amount of the bills paid in, yet, if they are not pass 
 entered as bills in the banker's books — and the cash 
 balance, independently of the bills, is in favor of the cus- 
 tomer at the time of the bankruptcy, — the customer has, in 
 that case, a right to have all the bills remaining in specie 
 
 (1) Per Holroyd J., Thomj)son (.3) Ex parte Sargeant, 1 Rose, 
 v^ Giles, 2 B.&C. 451. 153. Ex parte Pease, ibid. 235. 
 
 (2) Ex parte Wakefield Bank, igVes. 25. Ex parte iSo//en, ibid. 
 1 Rose, 24,~. Ex parte Leeds Bank, 155. 18 Ves. 229. 
 
 ibid. 254.
 
 of dis 
 count. 
 
 432 OF THE ASSIGNMENT [Ch. 11. Pt2. 
 
 Reputed delivered up to him by the assignees. And this, too, not- 
 B^K£Rf' witlistanding such bills were indorsed by the customer; 
 
 unless it can be shown to have been his inicntion to make 
 
 an absolute transfer of them ; for the indorsement may be 
 niade merely, to enable the banker more effectually to re- 
 ceive the amount from the other parties on the bills, for 
 Indorse- the account of the customer. (1) Indorsement is, how- 
 jmmafade ^^^^'j considered prima /acie evidence of discount, unless 
 evidence the object of mere deposit is clearly shown. (2) If the 
 object is a mere deposit, then it is a breach of faith for the 
 banker to negotiate the bills, unless he is justified in so 
 doing by the state of the customer's account. (3) But (as 
 Lord Eldon has observed in one of the cases upon this 
 subject) it ought to be generally known, that if bills in- 
 dorsed are remitted to bankers, they mai/ dispose of them 
 effectually — as between the subsequent holder and the re- 
 mitter — though contrary to the faith of the understanding 
 between the parties; and the remitter can, then, only come 
 in as a general creditor of the bankers. (4) 
 As to right In the cases which occurred in Boldero's bankruptcy, 
 
 to retain ^^le Lord Chancellor is reported to have dwelt much on 
 
 bills, aris- .... 
 
 ing from a the distinction between a general, and a limited, authority 
 
 general, OT j.^ discount; — and the bearing of his opinion seems to be, 
 
 authority that if bankers have a general authority to discount, the 
 
 to dis- customer in that case would have no right to have the bills 
 
 delivered up ; and he is of the same opinion, also, (as has 
 
 been already observed) when the bills are paid in as cash, 
 
 and the customer is entitled to draw, as having that credit in 
 
 cash — in which last case, it is conceived, the bankers would 
 
 (as a matter of course) have, by legal inference, an authority 
 
 to discount the bills so paid in. With great deference, 
 
 however, it is submitted, that there is no solid distinction 
 
 in law, whether the banker has a genet al, or a contracted 
 
 (1) Thovipson V. Giles, 2 B. & C. (5) Per Bayley J., 2B. & C. 409. 
 422. (4) Ex parte Pease, 1 Rose, 238. 
 
 (2) Ex parte Towgood, 19Ves. 246. Collins v. Martin, iB. «&P. 
 229. : and see 2 B. &C. 429. 648. Ibid. 546. 
 
 count.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 433 
 
 authority in this respect, as far as regards the right of the Reputed 
 customer to reclaim bills remaining in specie in the ^^^^^b^" 
 
 banker's hands. The principle, which governs nearly all 
 
 the cases on this subject, is, that in questions between a 
 banker and Jits customer (though not as between the cus- 
 tomer and third persons), the banker is considered pre- 
 cisely in the situation of a factor ( 1 ) ; and has only a lien 
 upon the securities in his hands for his general balance. 
 If the factor has converted the goods of his principal into 
 money ; — or the banker has negotiated (even contrary to 
 good faith) his customer's securities, and turned them into 
 cash ; — then, as money has, generally speaking, no ear- 
 mark to distinguish it from the common stock, neither the 
 principal in the first case, nor the customer in the last, 
 can have a specific claim for such money against the 
 assignees either of the factor, or the banker, in the event 
 of his bankruptcy. But, unless the property is actually 
 changed — either by discounting (2) the bills with the 
 banker — or by the banker himself negotiating them, — it is 
 apprehended, that in whatever way they may have been paid 
 in, or whether the banker had a general, or only a limited, 
 authority to discount, his assignees can have nothing more 
 than a lien for his general balance, if the bills remain in 
 specie in his hands at the time of his bankruptcy ; and 
 that the customer (if the cash account is in his favour (3) ) 
 has a right to have the bills delivered up, upon his indem- 
 nifying the estate against any outstanding acceptances (4) 
 of the banker for his own accommodation. 
 
 But though a customer has a right to have short bills Holders of 
 
 delivered up to him, if the account is in his favor, — vet ^^"•'^'■'s 
 
 fiii> 7- ^ J outstand- 
 
 the holders of the bankers oidstanding acceptances in favor ingaccept- 
 
 of the customer have no such right, notwithstanding the f"ces, 
 
 ° ° have no 
 
 (1) Collhis V. Martin, 1 Bos. & (3) And see Giles v. Perkins, 
 P. 65 1 . Thompson v. Giles, supra. 9 East, 1 2. 
 
 Bolton V. Puller, supra. (4) Ex parte Buchanan, 1 Rose, 
 
 (2) Carstairs v. Bates, 3 Camp. 280. 19Ves. 201. EKpavteBow- 
 301. ton, 1 Rose, 15. 17Ves. 426.J and 
 
 see per Holroyd J., 2 B, & C. 451 . 
 
 F P
 
 434 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Reputed shoit bills may have been expressly deposited to answer 
 "^!l^!^rVFc' such acceptances. For these bill-holders, beino; no parties 
 
 BANKERS. ^ C3 1 
 
 to any contract between the customer and the banker, can 
 
 tl ""] *°t ^''^V6 no lien even in equity upon such short bills; — the 
 bills. object of depositing which was, not for the security of the 
 
 persons in whose hands the banker's acceptances might 
 be, but for the security of the banker himself^ who became 
 liable on them. But, as the liability of the banker's 
 estate, in respect of such outstanding acceptances, must be 
 exonerated, before any restitution of the short bills can 
 be claimed by the customer — if the customer, there- 
 fore, should also become bankrupt, then his assignees are 
 bound to leave the banker's estate in the same condition, as 
 But Lord the customer must have done himself. . And, as the holders 
 H "" '11 °^ ^^^ outstanding acceptances are, in this predicament, 
 render entitled to be paid out of the produce of such short bills, 
 their claim ^i^Qugh not possessing a direct lien upon them, — the Lord 
 Chancellor will, on petition, order such an arrangement of 
 the property between the two estates of the banker and 
 the customer, as may indirectly render the claim of the 
 except bill-holders available. (1) When bankers, however, be- 
 fore their bankruptcy have received out of the produce 
 of part of the short bills, a sum of money more than suffi- 
 cient to satisfy all their outstanding acceptances for the 
 customer, — their assignees will, then, have no right to retain 
 the remaining short bills to satisfy such acceptances; and, 
 consequently, the holders of the latter will, in this case, 
 have no greater right to be paid out of the produce of the 
 remaining short bills. But, though the bankers may have 
 been in cash sufficient to pay these acceptances, there maj' 
 still be such a state of accounts between them and their 
 customer, as will give them a lien upon the remaining bills; 
 and, in order to ascertain this state of account, the Lord 
 Chancellor will (on the petition of the bill-holders) refer it 
 to the Master, to inquire, whether the bankers had, at the 
 
 (l) Ex parte Waring, Ex parte /jz^/i-s, 2 Rose, 182. igVes. 5-15. 
 
 when.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 435 
 
 time of their bankruptcy, any lien upon the remaining short Beputed 
 bills in their hands. ( 1 ) ownership: 
 
 ^. ' BANKERS. 
 
 v., a customer of the banking-house of D. and Co., 
 
 transfers to N. (a partner in the firm) certain stock by way , /'' ^ 
 c . J J balance of 
 
 of security for money borrowed of them, and gives also stock ap- 
 
 notes for the amount, payable on the stock beins: re-trans- P'op^^t^d 
 
 to Jinswpi* 
 
 ferred to him. He pays off these notes ; and afterwards a pai-ti- 
 borrows a further sum on the ioint note of himself and ^" . 
 
 o\ 11 m 
 
 his son, without calling for a re-transfer. The stock so 
 transferred (being blended with other stock, of which N. 
 was in like manner possessed by way of security for other 
 customers) is sold by the partnership, except a small 
 balance still remaining in the name of N. — It was held, 
 under these circumstances, that (the other creditors in re- 
 spect of stock having been satisfied their demands) V. was 
 entitled to the whole of this balance, as being sufficiently 
 appropriated by the bankers to answer j^^o tanto the stock 
 originally transferred by N. (2) 
 
 An order may be applied for to have short bills delivered Order for 
 up, before the assignees are chosen, in case there is a pro- j '^j^k^ii 
 visional assignee, — to whom such order will be a sufficient against 
 
 protection for what he does, in pursuance of the directions F°^: 
 ^ . . * sional as- 
 
 contamed m it. (3) sio-nee. 
 
 4. Possession as Trustee, Executor, or Administrator. 
 
 "Where the bankrupt is a Trustee, and at the time of his Trust pro- 
 bankruptcy has any property belonging to his cestui que P^''*y ^^°^^ 
 trust in his possession, which can be distinguished from the to assig- 
 mass of his own property, it does not in this case pass to "^^^• 
 his assignees ; for any presumption of reputed ownership, 
 arising from the fact of possession, is rebutted by the cir- 
 cumstance of the trust. Formerly, when a trustee, or 
 executor, became bankrupt, it was the practice, upon the 
 application of the cestid que trusts, or other parties in- 
 
 (1) Ex parte Parr, Buck, 191. (5) Ex parte Buchanan, 1 Rose, 
 
 (2) Vull'umy \. Noble, 3 Meriv. 280. 19Ves.201. Ex parte Burton 
 595. Bank, 2 Rose, 162. 
 
 r F 2
 
 436 
 
 OF THE ASSIGNMENT [Ch.ll.Pt.2. 
 
 Reputed 
 
 ownership: 
 
 TRUSTEE. 
 
 Lord 
 Chan- 
 cellor may 
 order trust 
 stock, &c. 
 to be trans- 
 ferred. 
 
 Cases 
 where 
 trust pro- 
 perty does 
 not pass. 
 
 terested, to appoint a veceiver of the trust property, the 
 better to secure the effects for the purposes of the trust. (1) 
 But now, by section 79. of the new statute it is enacted, 
 that if any bankrupt shall, os trustee^ be seised, possessed 
 of, or entitled to, either alone or jointly, any real or per- 
 sonal estate (2), or any interest secured upon or arising out 
 of the same ; or shall have standing in his name as trustee, 
 either alone or jointly, any government stock, funds, or 
 annuities, or any of the stock of any public company, either 
 in England, Scotland, or Ireland, — the Lord Chancellor, 
 on the petition of the persons entitled in possession to the 
 receipt of the rents or dividends, on due notice given to all 
 other persons (if any) interested therein, may order the 
 assignees and all persons whose act or consent thereto is 
 necessary, to convey, assign, or transfer such estate, in- 
 terest, &c. to such person or persons as the Lord Chan- 
 cellor shall think fit, upon the same trusts as such estate, 
 &c. were subject to before the bankruptcy; and also to re- 
 ceive and pay over the rents as he shall direct. (3) 
 
 There are many cases, however, which have decided, that 
 trust property does not pass to the assignees of a bankrupt 
 trustee. Thus, where a bill of sale was made to the bankrupt 
 of certain leases and other property, in trust to pay the debts 
 of the assignor, — the possession of such property by the 
 bankrupt was held not to be a case of reputed ownership. (4) 
 So, where a bankrupt had shares in a trading company, in 
 trust for W., who by his will appointed the bankrupt his 
 residuary legatee, — Lord Redesdale held, that the shares 
 were not left in the bankrupt's possession, so as to entitle 
 his assignees absolutely to them ; but that they were sub- 
 ject to the debts and legacies of W. (5) And where a 
 
 (1) Ex parte Ellis, 1 Atk, 101. 
 Ex parte Llewellyn, 1 C.B.L. 137. 
 Langley v. Hawke, 5 Mad. 46. 
 
 (2) Quaere, whether this pro- 
 vision was necessary, as assignees 
 were never considered entitled in 
 any way to trust estates? 
 
 (3) This section is an extension 
 
 of the 36 G. 3. c. 90. s. 1., which 
 was confined to government stock, 
 standing in the name of the bank- 
 rupt. 
 
 {4) Copeman v. Gallant, 1 P. 
 Wms. 524. 
 
 (5) Joy V. Campbell, 1 Sch. & 
 Lef. 328.
 
 Sect. 5.] AS TO PERSONAL PROPERTY. 4Ji7 
 
 bankrupt, previous to his bankruptcy, assigned to B. for a Reputed 
 valuable consideration a debt due from A. to the bankrupt, — "trustee' 
 
 the bankrupt was, in this case, held to be a trustee for B,, 
 
 and the debt not to pass under the commissioners' assign- 
 ment. (1) So where a lease was granted to W., who after- 
 wards committed an act of bankruptcy, and then executed a 
 declaration of trust in favour of R. ; and on the trial of an 
 issue directed by the Court, it was found that W.'s name 
 was used in the first instance in trust for R. ; — it was held, 
 that the lease did not pass to W.'s assignees ; and that the 
 declaration of trust, though executed after the bankruptcy, 
 was good in favour of R., within the statute of frauds. (2) 
 And where a testator directed, that in case his son should 
 carry on his (testator's) trade for the benefit of himself and 
 his mother, his lease and furniture should not be sold, but 
 that the trustees should permit the widow and children to 
 reside in his house, and have the use of the furniture ; and 
 the widow and son carried on the trade and became bank- 
 rupt, — it was held, in this case, that the furniture, &c. was 
 not in the order and disposition of the bankrupts, and did 
 not pass to the assignee ; — as it was not in the exclusive 
 possession of the widow, but only as connected with that 
 of her children — and, as it was also a possession connected 
 with title, and dependant in the possession of the bank- 
 rupts upon the same trusts, as it would have been subject 
 to, had it remained in that of the trustees of the tes- 
 tator. (3) 
 
 The same rule also is established in the case of an Exe^ Where 
 cutor^ or Administrator' ^ becoming bankrupt ; for the pro- bankrupt 
 perty they possess in either of those capacities cannot be cutor or 
 
 assigned bv the commissioners, so as to defeat those who aa"i'nis- 
 
 o J trator, 
 
 have a right to follow the specific fund (4) ; not even if such 
 
 (1) Winch v.Keeley, lT.R.619.; (.5) Ex parte ikfar^in, 2 Rose,331. 
 and see Ex parte £j/«s, 124. Un- 19Ves. 491. 
 
 win V. Oliver^ 1 Burr. 481. (4) Ex parte Marsh, 1 Atk. 159. 
 
 (2) Gardner v. Roive, 2 Sim. & Ex parte Llewellt/n, 1 C. B. L. 137. 
 S.346. 
 
 F r 3
 
 iSS 
 
 OF THE ASSIGNMENT [Ch. ll.Pt.2. 
 
 Reputed 
 ownership: 
 
 EXECU- 
 TOR. 
 
 Where 
 lands come 
 to him as 
 heir. 
 
 Where 
 bankrupt's 
 wife an 
 executrix. 
 
 Where 
 
 bankrupt 
 
 executor 
 
 as well as 
 
 residuary 
 
 legatee. 
 
 fund consists of money^ provided it can be specifically dis- 
 thigiiished and ascertained to belong to the testator, and 
 not to the bankrupt himself. (1) And so, where real estates 
 devolve upon the bankrupt as heir, a specialty creditor of 
 the ancestor may follow the real assets, or their specific 
 produce, in the hands of the assignees. (2) 
 
 If the bankrupt is the husband of an executrix, the 
 commissioners in this case cannot asssign the testator's 
 goods, which are left in the bankrupt's possession ; for the 
 wife being possessed of them in miter droit, tiie husband 
 can have them in no better right (3) ; and the same, with 
 respect to a bond debt due to her as executrix. (4) So, 
 where the wife of a bankrupt administered to her father, 
 and became possessed as administratrix of his effects, to 
 which she and her infant brothers and sisters were entitled ; 
 and the husband continued the business of the father for 
 their benefit; — Lord Eldon held, that this was not such a 
 possession of the goods by the bankrupt, as could be deemed 
 a leaving them in his order and disposition with the con- 
 sent of the owner — as the infants were incapable in law 
 of giving any consent. (5) 
 
 Where the bankrupt was executor and residuary legatee, 
 and before his bankruptcy collected in sufficient assets to 
 pay the debts and legacies, and the residue consisted of 
 debts and mortgages due to the testator, — Lord Hard- 
 wicke said, that in such a case, though they could not in 
 law vest in the assignees, as the bankrupt took them in 
 auter droit as exeador, yet that the equitable interest be- 
 longed to the assignees ; and that he would not scruple to 
 let them sue in the bankrupt's name to get in the debts. (6) 
 But where a bankrupt, after obtaining his certificate, 
 (which, however, was subsequently held to have been ob- 
 tained by fraud) became possessed of leasehold premises, 
 
 (1) Hoivard v.Jemmet, 3 Burr. 
 13G9. per Lord Mansfield. 
 
 (2) Ex parte ilfor/ow, 5Ves.449. 
 
 (3) Ex parte Marsh, supra. 
 
 (4) Ludloiu v. Browning, 1 1 Mod. 
 138. 
 
 (5) Viner v. Cndell, 3 Esp. 88. 
 
 (6) Butter v. Richardson, I Atk. 
 213. x\mb. 74.
 
 Sect. 6.] AS TO PERSONAL PROPERTY. 439 
 
 as executor and residuary legatee, which he mortgaged, Reputed 
 and afterwards assigned the equity of redemption to another ^xecu-^' 
 person; and the deed recited, that the assignment was tor. 
 made for the purpose of paying the debts of tlie testatrix ; 
 and the assignee of the equity of redemption took an as- 
 signment of the mortgacce ; — the claim of the latter was 
 held preferable to that of the assignees under the commis- 
 sion; as tJiei/ could only be entitled to the rights of a re- 
 siduary legatee, and a residuary legatee is bound by an 
 assignment made by the executor for a valuable consider- 
 ation. ( 1 ) 
 
 Where, however, a bankrupt, who was entided to take WFiere a 
 out administration to the effects of an intestate, neglected ?![^']".^"' 
 to do so, but took possession of the goods and remained adminis- 
 
 in possession of them for a period of twelve years, — it was tration,re- 
 L 1 1 1 1 • c- 1 1 • 11 mams in 
 
 nelcl, tliat this ims a case ot reputed ownership, and that possession 
 
 the goods passed to his assignees. (2) several 
 
 Section VI. 
 
 Of Property fraudulently delivered in contemplation of BanJc- 
 7-aptcy. (And see as to a fraudulent or voluntary Con- 
 veyance, ante, 71. 365.) 
 
 The vohmtary delivery, or disposal, by the bankrupt of 
 any part of his property, in contemplation of bankruptcy, 
 either to defeat the claims of his creditors generally, or to 
 favour one in preference to others, is held to be fraudulent 
 and void. (3) This doctrine Loi-d Ellenborough has desig- 
 nated as an excrescence upon the Bankrupt law ; under 
 which it was originally considered, that the acts of a trader 
 only subsequent to his bankruptcy were strictly void (4) — 
 
 {\) Bedford v.Woodhavi, 4:\es. (5) B. & P. 584. 11 East, 260. 
 40. note (b.) (4) 2 Camp. 168. 
 
 (2) Fo.v\.Fhhcr,oB.8ck.l35. 
 
 F F 4
 
 440 
 
 OF THE ASSIGNMENT [Ch. ll.Pt.2. 
 
 Property 
 fraudu- 
 lently de- 
 livered. 
 
 Transfer 
 by bank- 
 rupt, being 
 insolvent, 
 and with- 
 out con- 
 sideration, 
 void. 
 
 As to deal- 
 ings two 
 months 
 before 
 commis- 
 sion. 
 
 As to gift 
 of vioney 
 to a child 
 for his 
 mainte- 
 
 the act of bankruptcy hemg held to draw the line of separ- 
 ation, between that property which might be disposed of by 
 the bankrupt, and that which vested in the assignees. But 
 it occurred to those who presided in the courts, that it was 
 unjust to permit a party, on the eve of bankruptcy, to make a 
 voluntary disposition of his property in favour of a particular 
 creditor, leaving the mere husk to the rest ; and, therefore, 
 that a transfer made at such a period, and under such cir- 
 cumstances as evidently shewed that it was made in con- 
 templation of bankruptcy, and in order to favour a particular 
 creditor, should be void. (1) 
 
 In accordance with this doctrine, therefore, it is enacted 
 by the ISd section of the new statute, that if the bank- 
 rupt, being at the time insolvent, shall (except on the 
 marriage of any of his children, or for some valuable con- 
 sideration) have assigned or transferred to any of his chil- 
 dren, or any other person, any goods or chattels, or have 
 delivered or made over any bonds, bills, notes, or other se- 
 curities, or transferred his debts to any other person, or 
 into any other person's name, — the commissioners may, in 
 such case, sell and dispose of the same in the same way, as 
 of the bankrupt's other property. (2) 
 
 But by secfioti 81. all dealings and transactions with any 
 bankrupt, bond Jide made and entered into more than tiao 
 calendar months before the date and issuing of the com- 
 mission, are declared to be valid, notwithstanding any prior 
 act of bankruptcy, provided the person so dealing with the 
 bankrupt had not at the time notice of any prior act of 
 bankruptcy. 
 
 It was formerly held by Lord Northington, that a gift 
 of money to a child, for his maintenance and subsistence in 
 the world, could not be supported against ci*editors ; for 
 that no man had such a power over his own property, as to 
 defeat his creditors in the disposition of it, unless for good 
 
 (1) 1 Star. 89. 
 
 (2) This section is taken from 
 the iJac. 1. c. 15. s. 5., but the 
 
 words in italics were not in that 
 statute.
 
 Sect. 6.] AS TO PERSONAL PROPERTY. 4-41 
 
 conpiueration ; and that blood had been held to be not a Property 
 ^ood consideration. (1) But in a later case Lord Eldon -^f'^^^', 
 held, that a gift of 900/. to his son by a man, who three Uvered. 
 years afterwards became bankrupt (though the gift was not -^— 
 in consideration of marriage, or to buy him a share in a 
 partnership), could be supported against creditors; and that 
 the 1 Jac. 1. c. 15. s. 5. did not extend to a payment of 
 money. (2) And the Court of King's Bench has, also, de- 
 cided to the same effect. (3) The word monei/^ it will be 
 observed, is not comprised in the above section any more 
 than in the statute of James, being confined to things only 
 which are the subject of conveyance. And, indeed, alarm- 
 ing consequences would follow, if the statute was to extend 
 to payments of money ; for a son might, then, be liable to 
 refund any portion of money given to him by his father some 
 time before the bankruptcy, and purely with the intention 
 of providing for his maintenance. Upon the same prin- 
 ciple as that which governed the last two cases, it was 
 held, also, that where one of the partners of a bank from 
 time to time transferred sums of money, to the credit of his 
 son's private account with the banking-house, the son was 
 entitled to prove for the amount under a commission against 
 the partnership. (4-) 
 
 Stock, it has been decided, comes within the description : Stock. 
 " goods and chattels." Where the bankrupt, therefore, 
 purchased stock in the name of his son (a minor) as a 
 trustee for him, the stock was held to belong to the as- 
 signees. (5) 
 
 Where a trader advanced to a lessee half of the fine Money ad- 
 necessary to procure a renewal of a lease, and took from vanced by 
 him a promissory note to repay the money, unless he j.j,pj. j^* 
 should by will bequeath the leasehold estate to one of the procure a 
 trader's children, — and the lessee bequeathed the estate hfs^cliilV** 
 
 (1) Partridge v.Goff,kmh. 596. (4) Ex parte Skirratt, 2 Rose, 
 
 (2) Ex parte Shorland, 7 Ves.88. 384. 
 
 Ex parte Smith, 1 Rose, 210. (5) Brown v. Bellnris, 5 Mod. 53. 
 
 (3) Kensington v. Chantler, 2 M. 
 &S.36.
 
 44-2 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Property 
 fraudu- 
 lent! 1/ de- 
 livered. 
 
 What is a 
 fraudulent 
 prefer- 
 ence. 
 
 Delivery 
 of goods 
 under a 
 pretended 
 sale; 
 
 or an ab- 
 solute sale, 
 with an in- 
 tention to 
 prefer. 
 
 Where 
 not in the 
 usual 
 course of 
 trade. 
 
 accordingly, but befoi^e his death the trader became a bank- 
 rupt, — and, after the lessee's death, the assignees filed a 
 bill against the child of the bankrupt, claiming the money 
 advanced, or half the estate; — Lord Thurlow held, that if 
 it was money advanced without a lien, it might be dan- 
 gerous to give it to the assignees ; but that, as far as the 
 money advanced was a lien, the father pi'ocured an interest, 
 which must go to the" assignees. (1) 
 
 With respect to what is, and what is not^ considered an 
 undue preference by the bankrupt of any particular cre- 
 ditor, — each case of this kind must depend upon its 
 own pecuhar circumstances ; of which, perhaps, the most 
 material is, the relative situation in which the bankrupt 
 and the creditor stand with each other, at the time of the 
 delivery, or transfer, of the bankrupt's property. Though 
 the transaction may be made to assume the appearance, of 
 a sale of the goods by the bankrupt to the creditor, yet if 
 other circumstances shew that it was but a ■pretended sale, 
 the delivery of the goods will be fraudulent and void. (2) 
 So, though it may amount to an absolute sale, yet where it 
 appears that the intention of the bankrupt was to give the 
 creditor an undue preference, the sale will, in this case, be 
 equally void as against the assignees. (S) But where a 
 creditor, being unable to procure payment for some barley 
 which he had sold to the bankrupt, and suspecting him to 
 be in bad circumstances, re-purchased the barley by a 
 third person, and in his name, a short time before the 
 bankruptcy — the bankrupt not being privy to the contrivance 
 of the creditor — it was held, that this was no fraud against 
 the Bankrupt law. (4) 
 
 The delivery of the property also will be considered fraudu- 
 lent, when it is not delivered in the usual course of trade, or 
 of the accustomed dealing between the parties. (5) Thus, 
 
 (1) Fryer v. Flood, 1 Bro. 160. 
 
 (2) Rusty. Coojier, 2 Cowp. 629. 
 (.3) Martin v. Pewtress, 4 Burr. 
 
 2477. 
 
 (4) Harris v. Liinell, 1 B. & B. 
 590. 
 
 (5) Alderson v. Tcviple, 4 Burr. 
 2235. 1 Bl, 441.
 
 Sect. 6.] AS TO PERSONAL PROPERTY. 443 
 
 where a bankrupt, on the eve of his. hanlcriiptcy, indorsed 'Property 
 
 -, • 1 I , , I'. >^ frmidu- 
 
 and sent a promissory note by the post to a creditor, to /^^/„ ^^. 
 
 whom he had never made a payment in sucli a manner Hvcred. 
 before, and no applicatio7i had been on this occasion made 
 by the creditor to the bankrupt for a note, or" for pay- 
 ment, — the transaction was held to be fraudulent and 
 void. ( 1 ) So, where a trader in embarrassed circumstances 
 gave his creditor a promissory note for the "johole of his 
 debt, in consideration of his promise to induce the other 
 creditors to agree to a composition^ each party undertaking 
 to keep the matter a secret from the other creditors (2) ; or, 
 where stock was transferred to a creditor who had struck a 
 docket, in consideration of his agreeing not to prosecute the 
 docket ; — each of these transactions was held a fraud upon 
 the Bankrupt law. (3) And the same, where a bankrupt 
 had, in contemplation of absconding, inclosed certain bills 
 to a creditoi*, saying, " he has the honour to shoix) him that 
 preference, which he conceives is certainly his due ;" — for 
 though the inclosure was made without the privity of the 
 creditor, yet the express motive of the bankrupt was to give 
 him 2i preference. (4) Where a trader also had voluntarily, Where 
 laithoiit being called upon for the money, executed an assign- voluntary, 
 ment of a third part of his effects to his brother, in consi- 
 deration of a previous loan of 120/. — though possession was 
 delivered instantly, and several acts of ownership were exer- 
 cised by the brother, who had no knowledge or suspicion of 
 the insolvency; — yet, as the trader in two days afterwards 
 absconded, and was declared a bankrupt, the Court held the 
 deed void, as partial and unjust to the other creditors (5) — 
 and as being made in contemplation of bankruptcy. So, 
 where a trader (knowing himself to be insolvent) called 
 upon his creditor and informed him of it, when the creditor 
 said, he must nevertheless be paid his debt — which was 
 accordingly done — and the trader immediately afterwards 
 
 (1) 4 Burr. 2235. N) Harman v. Fisher, Cowp. 
 
 (2) Wells V. Girling, iB. &B. 117. 
 
 447. (5) Linton V. Bartlett, 5 Wils. 
 
 (5) Cory V. Gertchen, 2 Mad. 40. 47. Cowp. 124.
 
 444< 
 
 OF THE ASSIGNMENT [CIl.ll. Pt.2. 
 
 Property 
 fraudvr- 
 lently de- 
 livered. 
 
 When pay- 
 ment not 
 voluntary. 
 
 Rent. 
 
 Payment 
 in the 
 regular 
 course of 
 trade ; 
 
 became a bankrupt ; — this was held to be a void transaction, 
 — inasmuch as the circumstance, of the trader calling upon 
 his creditor, and disclosing to him his situation, and then ac- 
 ceding directly to his request of payment, afforded strong 
 grounds for inferring a fraudulent performance. (1) So, 
 also, where any voluntary payment is made to a creditor 
 under circumstances, that might reasonably lead the debtor 
 to believe that his bankruptcy was probable, though not in- 
 evitable, — such payment will be a fraud upon the other 
 creditors ; and the money so paid may be recovered back 
 by the assignees. (2) 
 
 But a payment is not voluntary, which is made by a 
 bankrupt to a creditor, in consideration of the latter relin- 
 quishing some right he then possessed, — although the cre- 
 ditor may not, previously to relinquishing such right, have 
 stipulated for any payment by the bankrupt. Thus, where 
 a creditor who had a lien on the bankrupt's ship, received 
 from him shortly before his bankruptcy the balance due on 
 account of disbursements made on the ship, and then 
 delivered up the ship's papers to the bankrupt, without 
 having previously stipulated for payment of the balance, as 
 a condition for the surrender of his lien, — it was held, 
 nevertheless, that the creditor was entitled to retain this 
 payment as against the assignees. (3) So, where the bank- 
 rupt paid his landlord five quarters' rent, even after an act 
 of bankruptcy, the payment was held to be good ; for the 
 landlord had a right of distress and re-entry for the rent, 
 and he is at liberty to waive that right if he chooses, and 
 accept of the rent instead. (4) And in all cases, where a 
 bankrupt has paid a creditor his debt, in the regidar course 
 of trade, or of their dealings with each other, — this is a 
 fair advantage, which the creditor is not compellable to 
 relinquish; for it is a transaction that might pass between any 
 
 {\) Singleton \. Butler, 2 B. & {o) Thompsonv. Beatson,\Bmg. 
 P. 283. 145. 
 
 (2) Poland V. Glyn, 2 Dowl. & (4) Mavor v. Croome, 1 Bing. 
 R.,310. 261. Stevenson v. Wood, 5Esp. 
 
 200.
 
 Sect. 6.] AS TO PERSONAL PROPERTY. 445 
 
 two persons, without having any thing like bankruptcy in Properti/ 
 
 contemplation. (1) Thus, where a bankrupt, then solvent, ilnuJ^^g. 
 
 ordered his correspondent at Bombay to remit certain pro- livcred. 
 
 ceeds to an agent in England, who was in the habit of ac- 
 
 cepting bills for the bankrupt ; though the remittance was 
 
 not, in fact, made until after the act of bankruptcy, — yet, 
 
 as the order was given by the bankrupt when he was solvent, 
 
 and there was no fraud in the case, it was held, that the 
 
 agent was entitled to I'etain the amount of this remittance, in 
 
 satisfaction of a balance due to him from the bankrupt. (2) 
 
 So, even if the transaction amounts in reality to the pre- or in pur- 
 
 ference of a creditor, yet if such preference be only con- ''"^"^^ °' 
 
 ^ J t ^ J a previous 
 
 sequential to the contract — as, if the payment is made, or agreement. 
 
 the act done, merely in pursuance of a prior agreement 
 
 between the parties, — the creditor, in this case, will not 
 
 be liable to refund to the assignees. (3) 
 
 Where bankers fraudulently sold out stock belonging to Contem- 
 
 a customer, which stood in their names, and applied the P'''*^^^ ^P- 
 
 ' . propna- 
 
 proceeds to their own use — and afterwards, whilst they tion of 
 
 remained solvent, wrapped up certain bonds of their P^^P^^'^Y} 
 own in an envelope, inscribed with the customer's name, transferred 
 and inclosed a memorandum stating that they had deposited ""*•" ^^^ 
 the bonds with him, as a collateral security for his stock, bank- 
 which they promised to replace — and then deposited the ruptcy. 
 parcel amongst the securities belonging to other persons 
 who dealt with them — but without giving any information 
 of these circumstances to the customer until the evening 
 before their bankruptcy, when they sent him the parcel 
 with the bonds, saying, that they must stop payment the 
 next morning; — it was held, that the customer could not 
 under these circumstances retain the bonds against the 
 assignees (4) of the bankers; for, though the bankers in- 
 tended to deliver the bonds to him, he had never actual 
 POSSESSION of them, until the very eve of the hanhniptcy ; 
 
 (1) Per Lord Mansfield, 4 Burr. (3) Per Lord Mansfield, Cowp. 
 2235. 117. 
 
 (2) Jamieson v. Hodson, 1 Star. (4) Wilson v. Balfour, 2 Camp. 
 150. Alley v. Hodson, 4 Camp. 579. 
 
 .'525.
 
 4<4<6 OF THE ASSIGNMENT [Ch. ll.Pt.2. 
 
 Property and a contemplated appropriation does not amount to an 
 
 fraudu- „pf„„i trinsfer 
 lently dc- ^^^^^^ tiansiei. 
 
 livered. But where a trader, who had obtained bills of exchange 
 
 p "" from the defendant, upon a fraudulent representation that, 
 restored a security given by him to the defendant (which was void) 
 by bank- ^^^ ^^^ ample security — and on the next day (being resolved 
 which he to Stop payment) informed the defendant, that he had re- 
 had ob- pented of what he had done, and had sent express to stop 
 under false the bills, and would return them — and three days after- 
 pretences, wards committed an act of bankruptcy — after which he 
 returned to the defendant all the bills (except one that had 
 been discounted), and also two bank notes, part of the pro- 
 ceeds of such discount — upon which the defendant delivered 
 back the security — and afterwards a commission issued 
 against the trader, and his assignees then brought trover 
 against the defendant for these bills and bank notes ; — it 
 was held, in this case, that the defendant was entitled to 
 retain all the bills and notes so returned by the bankrupt, on 
 the ground that the bills were originally obtained under a 
 false ■pretence of giving a good security ; and that since, under 
 such circumstances, a court of equity would order the pro- 
 perty to be restored, it would be useless for a court of law to 
 permit that to be recovered, which could not be retained. (1) 
 Threat So where a trader, under a threat^ or an apprehension 
 
 or appre- merely^ oj legal process, civil or criminal — or from the pressure 
 legal pro- (^nd importunity of his creditor — delivers property to him, or 
 cess. gives him a power to receive it; — the transaction in any of 
 
 these cases is not considered a fraudulent preference, even 
 though the trader knew himself to be insolvent; for the act 
 on his part is not a voluntary act (which is implied in the 
 PREFERENCE of One Creditor to another) — but one, which 
 proceeds from the effect of fear or apprehension. (2) And 
 
 (1) Gladstone v. Hadtven, 1 M. ?«o?r, 5 Ves. 85. Yeatcsw. Grove, 
 & S. 5 1 7. 1 Ves. jr. 280. Holbird v. Anderson, 
 
 (2) Thompson \ . Freeman, i T. 5T. R. 235. Smith \. Payne, gT. 
 R. 155. Cosscr v. Gojigh, ibid. R. 152. C7-osby y. Crouch, '2Ci\mp. 
 156. note (c.) Hartshornv. Sloddcn, 166. 11 East, 256. De Tastct v. 
 2 B. & P. 582. Ex parte Scuda- Carrol, 1 Star. 88. Peid v. Ayton,
 
 Sect. 6.] AS TO PERSONAL PROPERTY. 447 
 
 even where a trader, in contemplation of bankruptcy, is Property 
 intending to give a creditor a voluntary preference, but [^^iiiy'd^. 
 before the intention is consummated, the creditor calls and Hvcred. 
 demands payment of his debt, — the payment in such a case 
 has been held to be good. (1) 
 
 But where the transfer or delivery of property (upon the Where 
 importunity of a creditor) does not redeem a trader from any (^^^^^ 
 jiresent diffiadtij, vv'hich is tlie ordinary motive for such an redeem 
 act, when really done under the pressure of a threat ; — Jvom an ' 
 this has been held to be evidence that the transfer was not present 
 made under such pressure, but voluntarily, and with a view '"Acuity. 
 to prefer the particular creditor in contemplation of bank- 
 ruptcy. Thus, where a trader, upon being pressed by a 
 creditor for payment or security (one or other of which he 
 said he ivoidd have) gave a bill of sale of what was ap- 
 parently the "di/iole of his stock, and immediately afterwards 
 left his business and home, and became a bankrupt; — this 
 transaction, notwithstanding the pressure, was held void as 
 against the assignees. (2) 
 
 But even a voluntary transfer of property, made by a Voluntary 
 trader in a situation of impending bankruptcy, will not be ti'ansfer 
 void, if made hond fdc, and not from any motive of undue not from 
 -preference. As, in a case, where certain traders ordered motive of 
 goods of a manufacturer to be sent to their agents to be ference. 
 shipped — and after the goods were delivered to such agents, 
 (the traders having stopped payment) the manufacturer 
 got possession of the goods, by indemnifying the agents for 
 delivering them up to him : the traders called a meeting 
 of their creditors, and were encouraged by the result of 
 such meeting, as well as by legiil advice, to give up all 
 claim to the goods to the manufacturer, which they accord- 
 ingly did the latter end of July, but did not commit an 
 act of bankruptcy until the 26th of September ; and the 
 
 1 Holt, N. P. Rep. 503. Arboidnw (2) Thornton v. Hargreaves, 
 Hanbury, ibid. 575. 7 East, 544. 
 
 (l) Baylcy v. Ballard, 1 Camp. 
 416.
 
 448 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Property 
 fraudu- 
 lently de- 
 livered. 
 
 Or merely 
 contem- 
 plating 
 that his 
 trade must 
 cease, 
 without 
 contem- 
 plating 
 bank- 
 ruptcy. 
 
 Or in con- 
 templation 
 of an in- 
 tended 
 deed of 
 composi- 
 tion. 
 
 Property 
 given up 
 by agree- 
 ment, at a 
 meeting of 
 creditors. 
 
 Court held that the above circumstances were evidence for 
 a jury to find, that the goods were given up bond Jide, and 
 not from any wish to give an undue preference. (1) 
 
 So, though a trader may contemplate that his trade must 
 cease, and that he cannot pay his creditors unless they 
 give him time, it does not necessarily follow, that he con- 
 templates bankruptcy. Thus, where B. had purchased 
 goods on October 8th, for the purpose of exportation ; but 
 finding that he must stop payment, and that he could not 
 apply the goods to the purpose for which they were 
 bought, he returned them to the seller on October 16th : — 
 on the 17th he stopped payment, but, expecting remittances 
 from abroad more than sufficient to pay his debts, he had 
 no doubt but that his creditors would give him time, which 
 they, however, refused, and a commission issued against 
 him the 2d November ; — It was held, that under these facts 
 the jury were warranted in finding, that the re-delivery of 
 the goods to the seller was not made in contemplation of 
 hanTcruptcy. (2) So also, where a preference is given by a 
 trader, in contemplation of an intended deed of composition, — 
 though it would have been fraudulent as against the credi- 
 tors under that deed, if it had been carried into effect — yet, 
 as a commission of bankruptcy did not issue until four 
 months afterwards, this was held to be not a preference in 
 contemplation of bankruptcy ; for no commission was, in fact, 
 contemplated, at ihe time the preference was given. (3) 
 And where a merchant in London received bills of ex- 
 change from his correspondent at Amsterdam, to whom he 
 was indebted beyond the amount of the bills ; and after 
 stopping payment, called a meeting of his creditors on the 
 1th January, when it was agreed that the bills should be 
 delivered to an agent in London of the creditors at Amster- 
 dam, in order to receive the money and hold it for the 
 
 (1) Dixon V. Baldwin, 5 East, 
 175, 
 
 (2) Fidgeon v. Sharp, 1 Marsh, 
 196, 5 Taunt. 539. 
 
 (3) Wheelwright 
 5 Taunt. 109. 
 
 V. Jackson,
 
 8eCt. 7.] AS TO PERSONAL PROPERTY. 449 
 
 persons who might be ullhiiateiy entitled to it: the bills, Stoppage 
 
 however, had been previously delivered by the merchant 
 
 to such agent, for the use and on the account of the credi- 
 tor at Amsterdam, and the agent received payment of the 
 bills as they respectively became due: the act of hank- 
 rujJtaj was not committed till October following, when a 
 commission issued against the merchant : — under these 
 circumstances. Lord Ellenborough held, that the assignees 
 could not maintain an action against the agent for the 
 amount of the bills ; as they were deposited with him for 
 the use and benefit of the creditor, and the bankrupt might, 
 at the time of the deposit, have himself directly returned 
 them to Amsterdam. (1) 
 
 Section VII. 
 
 Of the Effect of the Assig?im(mt upon Goods in transitu^ — 
 and herein of the llight of Stoppage. 
 
 The assignment of the commissioners does not pass any 
 property to the assignees in goods consigned to the bank- 
 rupt, which may be stopped in transitu, — whether such 
 goods are consigned to the bankrupt himself, or whether 
 he obtains possession of them in their transit to the hands 
 of the regular consignee. 
 
 The right of stoppage in transitu is a privilege, which Nature of 
 
 the law affords to every vendor who has not been paid for '•'^^ ""'S'"^ 
 
 1 • t 1 • If • 1-1 c of stoppage 
 
 goods, m order to protect nmiseli against the insolvency ot j„ transitu. 
 
 the vendee. Though forming part of the general law of 
 
 merchants (2), it seems with us in England to have been 
 
 first established in the Court of Chancery, as a kind of 
 
 (1) Graff V. Greffulhe, 1 Camp, session of an insolvent vendee, he 
 89. is entitled to have it back again ; 
 
 (2) 6 Robins's Adm. Rep. 325. (l East, 515. Abbott on Shipping, 
 In Russia and in France, if a seller 33.3. et scq.) ami this was also the 
 can merely identify the property, rule of the ancient civil law, Dig. 
 though it may be in the acttialpos- IS. 1. 19. 
 
 G G
 
 450 
 
 OF THE ASSIGNMENT [Cll.ll. Pt.2. 
 
 Stoppage 
 in ti'ansitu. 
 
 Can only 
 be exer- 
 cised, 
 when 
 vendee 
 proves 
 insolvent. 
 
 equitable lien(l); and to have been afterwards adopted by 
 the courts of common law, for the purposes of substantial 
 justice, and to prevent the debts of one man being paid 
 with the effects of another. (2) But, from whatever source 
 it sprung, it is a right now universally recognized in all 
 cases between an unpaid vendor of goods and the vendee ; 
 so much so, indeed, that Lord Hardwicke once observed 
 in a matter of this kind, that if the assignor could get his 
 goods back again by any means, provided he did not steal 
 them, he would not blame him. (3) As between the vendor 
 and vendee, however, the right does not (strictly speaking) 
 exist, unless the vendee prove insolvent ; for if a vendor, 
 from misinformation, or excess of caution, assumes this 
 privilege during the vendee's solvency, he assumes a right 
 which does not belong to him ; and the vendee would, in 
 such case, be entitled not only to the delivery of the goods, 
 but also to indemnity from the vendor for the expenses in- 
 curred in obtaining possession (4) of them. But it is not 
 necessary, that the vendee should be actually insolvent at 
 the time the goods are stopped ; for if he proves to be so 
 before the ordinary time, when they would have reached 
 their destination, the vendor will in that case have been 
 justified in the exercise of this right, and to the benefit of 
 his own provisionals) caution. 
 
 In the multifarious changes of ownership, however, which 
 merchandise is occasionally subject to in its transit from one 
 trader to another, questions of difficulty will frequently occur 
 between the consignor and third persons, — when the con- 
 sisnee assiijns for a valuable consideration the bill of lading 
 
 (1) Wiseman V. Vandcput, sVern. 
 205. Snee v. Prescotl, 1 Atk. 245. 
 D^Aqvi/a V. Lambert, Anib. -"99. 
 2 Eden. Rep. 75. 
 
 (2) 7 T.R.445. 
 
 (3) Snee v. Prescott, 1 Atk. 250. 
 Lord Kenyon said, (3 T. R. 467.) 
 that the doctrine of stojjping goods 
 in transitu was bottomed on Snee 
 V. Prescott, on which all the other 
 
 cases were founded ; but the right 
 was recognized in Wiseman v. Van- 
 deput, 2 Vern. 20."., long before 
 the case of Snee v. Prescott oc- 
 curred. 
 
 (4) Per Sir W.Scott, 6 Rob. 
 Adni. Rep., case of The Constantia ; 
 and see Ellis v. Hunt, 5 T. R. 469. 
 
 (.5) Ibid.
 
 Sect. 7.] AS TO PERSONAL PITOPERTY. 4-51 
 
 of the goods transmitted to him by tlie consignor, and Stoppage 
 without notice (on the part of such third persons) that the "^J^^^^^- 
 goods have not been paid for by the consignee. It is pro- Division 
 posed, therefore, to consider the right of stoppage in trajisitu ? ^ 
 under two divisions : firsts as it relates to questions simplv 
 between the ronstgnor and consignee, where there has been 
 no resale, or alienation, of the goods by the consignee; and, 
 secondly, as to questions between the consignor and third 
 persons, where there has been such resale or alienation. 
 
 An(\, first, as to questions between the consignor and con- Questions 
 
 signec, where there has been no resale, or alienation by the ''^'^^^'^^" 
 . 'J consig7ior 
 
 consignee. and con- 
 
 All goods not paid for by a consignee, may be stopped -"g"^*^- 
 by the consignor in any period of their transit, ere they 
 reach the hands of the consignee (1), whether delivered 
 to a idiarfitigcr (2), a carrier, an innJceeper (3), a master 
 of a vessel (4^), or in fact to any other person, either to 
 forwai'd, or to carry and deliver to the consignee. And When de- 
 even when goods are delivered to a common earner, or on "^'^'■'^" ^^ 
 '^ , ^ a common 
 
 board a general skip, at the request and appointment, and cank-r, or 
 
 in the 7iame of the consignee, and at his risk and expense: °" lioarda 
 the consignor is nevertheless entitled, if the consignee be- thin, may 
 come insolvent before the goods ari-ive, to stop them in l^e stopped. 
 transitu. (5) For a delivery of this nature to a carrier, or 
 master of a ship, being made merely for the purpose of 
 forwarding the goods to their destination, is only a con- 
 structive, and not an actual delivei y to the consignee ; and, 
 though in cases as between buyer and seller, if no bank- 
 ruptcy or insolvency happen, the goods in such a case may 
 be considered in the possession of the buyer the instant 
 
 (1) Wiseman v.Vandepui, 2 Y em. (4) D'' Aquila v. Lambert, Amb. 
 20.3. Ex parte Clare, 1 C. B. L. 399. 2 Eden, 75. 1 C. B. L. 382. 
 383. Snce v. Prescott, 1 Atk. 245. Ex parte Willcinson, cit. Anib. 400. 
 Northey v. Field, 2 Esp. G13. Bir- Ex parte Walker, 1 C. B. L. 394. 
 kett V. Jenkins, cit. Cowp. 295. (5) JValky v. Alontgomcri/, 3 East, 
 
 (2) Mills V. Ball, 2 B, & P. 457. 585. 
 
 (3) Hunter v. Beat, cit. 3 T. R. 
 466. 
 
 a G 2
 
 452 
 
 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Stoppage 
 iti transitu. 
 
 So to a 
 
 packer or 
 whar- 
 finger. 
 
 So plate 
 delivered 
 to an en- 
 graver. 
 
 Contra, 
 when 
 
 buyer uses 
 warehouse 
 of the 
 carrier, 
 &c. as his 
 own. 
 
 Or where 
 there is a 
 
 they go out of the possession of the vendor ; yet, in the 
 event of the hanla-ivptaj of the vendee, an actual delivery is 
 necessary to divest the vendor's right of stopping the 
 goods in transitu. (1) And the same, when the goods are 
 delivered to a jpacher, or nsoharjinger, at the request of the 
 consignee, to be forwarded to their place of ultimate desti- 
 nation ; for, in such a case, the packer, or 'wharfinger, is con- 
 sidered merely as a middle man, and only one of the hands 
 by which the gOvods are to be forwarded. (2) So, where 
 A. agreed to buy some articles o^ jplate of B., who was to 
 'j-et A.'s arms engraved upon them, and to pay for the en- 
 graving; it was held, that a delivery to the engraver for 
 that purpose, was not a delivery to A., so as to defeat B.'s 
 right of stopping the plate in transitu. [3] 
 
 But, where the buyer of goods has no warehouse of his 
 Olson to receive them, except that of a packer, or a 'mhatjinger, 
 and is in the habit of using their warehouse as the general 
 repository of his goods, the transitus in this case will be at 
 an end, when the goods arrive at such warehouse ; for the 
 packer and nx>harjinger are then considered as the private 
 agents of the buyer, and their possession as that of the 
 buyer himself. (4) And so, where a ti'ader in London, 
 having no X'oarehouse of his own, was accustomed to pur- 
 chase goods at Manchester, and export them to the 
 continent ; and the goods after their arrival in London re- 
 mained in the waggon-office of the carriers, until they were 
 removed by the trader for the purpose of being shipped ; — 
 it was held, under these circumstances, that the transitus of 
 the goods was at an end on their arrival at the waggon- 
 office. (5) 
 
 It was said indeed by Lord Mansfield, that goods re- 
 
 (1) Per BuUer J. Ellis v. Hunt, 
 Z T.R. 469. Per Lord Hardwicke, 
 1 Atk. 248. Stokes v. La Riviere, 
 cit. 5 T. R. 466. 
 
 (2) Mills V. Ball, 2 Bos. & P. 
 457. Hunt V. Ward, cit. .■jT.R. 
 467. 
 
 (3) Owenson v. Morse, 7 T. R. 64. 
 
 (4) Scott V. Pcttit, 3 Bos. & P. 
 469. Richardson v. Goss, ibid. 
 127. Per Chanibre J. Leeds v. 
 Wright, ibid. 520. 
 
 (5) Rowe V. Pickford, 1 Moore, 
 526. R Taunt. R.o.
 
 Sect. 7.] AS TO PERSONAL PROPEIlTy. 45$ 
 
 maiuecl ifi transitu, until they came to the corporal touch of Stoppage 
 
 the vendee. (1) But this is merely a figurative expression, ' 
 
 and has never been literally adhered to. (2) For, where .lymbolical 
 the goods are bulky, there may be a symbolical delivery of ""'"^''i'- 
 them, without any change of place, or without the vendee 
 even seeing them — such as a delivery of the kej/ of the 
 warehouse (3) where they ai'e deposited — or by the transfer 
 of any other indicia of property, — of West India Dock 
 warrants, for instance, where the goods are lying in the 
 company's warehouses. (4) In such cases it is quite 
 sufficient, if the goods come virtually into the possession 
 of the vendee, and he has exercised over them some act 
 of ownership. (5) 
 
 Where goods were consigned to a bankrupt in the Where 
 countrv, and as soon as they arrived at the inn there, his consignee 
 
 T , . , puis Ills 
 
 assignee went and put his marl: upon them, but did not mark on 
 take them away ; — it was held, nevertheless, that the con- *''^ goods. 
 signer could not afterwards stop them, as this was a suffi- 
 cient taking possession of them, so as to prevent their 
 being considered any longer in transitu. (6) A vendor, 
 however, does not lose his right, by the consignee merely 
 making a -prior claim to the goods ; for there must be either 
 a delivery i or some taking of possession by the vendee, in 
 order to divest the vendor effectually of his right to stop 
 them. (7) And ihepaijment of freight for the goods by the Payment 
 consignee, or his agent, appears not, of itself, to be a suffi- oifreJg'^t. 
 cient taking of possession, so as to deprive the consignor 
 of his right of stoppage. (8) 
 
 But in all cases, where the goods are delivered by the Delivery 
 vendor to a particular agent, appointed by the vendee, with- ^? ^^"" 
 
 (1) Hunter V, Beat, cit. 3 T,R. Samuda, 1 Holt. 395.; and see 
 466. 6 G. 4. C. 94. s. 2. 
 
 (2) Per Lord K. 3 T. R. 468. (5) Wright v. Lawes, 4 Esp. 82. 
 
 (3) Per Lord EUenboroiigh, (6) Ellis v. Hunt, 3 T. \l. 464. 
 12 East, 618. Per Lord K. 1 East, (7) 1 Atk. 245. Amb, 39<). 2 B. 
 192. & P. 457. 
 
 (4) Keyser\. Suse, Gow. N.P.C. (s) uMi/h v. Ball, 2 B. & P. 4«7. 
 58. Lucas V. Dorricn, 7 Taunt. Kinlock\.Craig,3T.R.\\9, 
 276. 1 .Moore, 29. Zmnger v. 
 
 G (; 3
 
 454. 
 
 OF THE ASSIGNMENT [Ch.ll. Pt. 2. 
 
 Stopjmge 
 in transitu. 
 
 Where 
 vendor 
 gives a 
 delivery 
 note on 
 whar- 
 finger, and 
 nothing 
 remains to 
 be done. 
 
 Where 
 something 
 does re- 
 main to be 
 done. 
 
 out being subject to any ulterior destination, and remain 
 entirely under the vendee's control, the right of the vendor 
 to stop in tramit%i is at an end. (1) 
 
 So, if goods at the time of the sale are in the hands of a 
 wharfinger, (though not appointed by the vendee, but 
 having been previously deposited with him by the vendor) 
 and the vendor delivers a note to the vendee, ordering the 
 wharfinger to deliver the goods to him : and the wharfinger 
 receives the note, and nothing remains to he done hy the 
 vendor in order to complete the sale; — the wharfinger is, 
 in this case, bound to hold the goods as the agent of the 
 vendee, and the vendor cannot countermand the order for 
 delivery ; nor is a transfer in the wharfinger's book, as we 
 have before seen (2), necessary to complete the delivery. (3) 
 
 But in all cases, where any material acts (previous to the 
 delivery of goods) remain to be done by the vendor, or the 
 wharfinger — such as the weighi7ig, or measurhig, of the 
 goods, or the separation of the quantity sold from the general 
 bulk, — the order for delivery may in that case be counter- 
 manded (4), tliough it is even actually entered in the 
 
 (1) Dixon v. Baldwin, 5 East, 
 175. 
 
 (2) Ante, 412. 
 
 (,5) Harman v. Anderson, 2Cam^. 
 243. Whitchouse V.Frost, 12 East, 
 014. 
 
 (4) Wallace v. Breeds, 15 East, 
 522. Hanson v. Meyer, 6 East, 
 614. Hawes v. Watson, 2 B. & C. 
 548. BuggY. Minett, 1 1 East, 210. 
 Austin v. Craven, 4 Taunt. 644. 
 White v. Wilks, 5 Taunt. 176. 
 
 1 Marsh. 2. Zagiiry v. Furnell, 
 
 2 Camp. 240. It is impossible to 
 reconcile the case of White v. Wilks 
 v^ith that of Whitchouse v. Frost, 
 supra ; the latter case deciding, 
 that the delivery of a quantity of 
 oil was complete, though the oil 
 sold had not been actually sepa- 
 rated from a larger quantity l)e- 
 longing to the vendor; — anil the 
 former, that such previous separa- 
 
 tion was absolutely necessary, be- 
 fore the tlelivery could be con- 
 sidered perfect. It was observed 
 by Sir J. Mansfield C. J., that the 
 difficulty was nmch greater in 
 holding a commodity in a liquid 
 state to be delivered, when not 
 separated from the general mass, — 
 than where the goods are of a solid 
 substance. And the case of White- 
 house V. Frost was, as to this par- 
 ticular point, much questioned by 
 the judges in Austen v. Craven, 
 4 Taunt. 044. Upon the whole, 
 the better opinion seems to be, 
 that wherever goods are in a 
 general mass, whether in a solid, 
 or a liquid state, a separation of 
 the quantity sold is indispensable, 
 to prevent the vendor's right to 
 countcrmantl the order, and stop 
 the delivery
 
 Sect. 7.] AS TO PERSONAL PROPERTY. 455 
 
 wharfinger's books, and the goods transferred into the Stoppage 
 name of the purchaser. ( 1 ) injransHu. 
 
 It has been tlecided in one case, that though goods are Where 
 permitted to remain in the warehouse of the vendor, yet, if vemlor 
 he receives "dinrehonse rent for them, this amounts to such a rent for 
 dehvery, as prevents the vendor's right of stoppage in tran- goods not 
 situ(Q,) ; though this circumstance alone would not, if the.' ,„., 
 vendor become bankrupt, prevent his assignees from sub- 
 stantiating a claim, founded on the principle of reputed 
 owner ship. (3) 
 
 A delivery of j^^^'t of a consignment of goods to the Delivery 
 consignee, in general, puts an end to the transitits of the ^ ^'T'' 
 whole. (4) But where a carrier landed a part of the goods 
 on the vendee's wharf; and then, finding that the vendee 
 had stopped payment, reloaded the same on board his own 
 barge, and took the whole of the goods to his own pre- 
 mises, — it was held, that this did not amount to a delivery 
 of the goods, so as to divest the consignor of his right to 
 stop in transitu ; for the special propcrti/ remained in the 
 carrier, after such part delivery, until the freight xvas paid — 
 or until he had done some act to shew, that he assented to 
 part with the possession of the goods, without receiving his 
 
 freight. (5) 
 
 Where goods are delivered on board a ship in the actual Delivery 
 possession of the vendee — that is, one which is let to ^/l board a 
 him for a certain period, and over which he has the entire possession 
 management and control (6) ; — or if goods are delivered of vendee, 
 to the vendee at a wharf, and are afterwards shipped by 
 him (7); — the vendor has then in neither case a right to 
 stop them in transitu. But this rule may be controlled in 
 
 (1) Shepley v. Davis, i Marsh. 504. Hammond v. Anderson, lN.R. 
 252. Bits/c V. Davis, 2 M. & S. G9. 
 
 597. (5) Crawshay v. Eamcs, 1 B. & 
 
 (2) Hurry V. Mangles, 1 Camp. C. 181. 
 
 452.; but see per Heath J. STaunt. (6) Fowler \. Kymer, cit. 7 T. 
 
 179. R. 440. I East, 522. 3 East, 396. 
 
 (5) See ante, 410. et seq. (7) Nohlc v. Adams, 7 Taunt. 59. 
 
 (4) Slubey v. Hay ward, 2 H. B. 
 
 G (> 4
 
 456 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Stoppage 
 in transitu. 
 
 Where 
 vendee has 
 no actual 
 control 
 over the 
 ship. 
 
 Where a 
 specific 
 pledge of 
 cargo. 
 
 some measure by the laws of a foreign state, upon a trans- 
 action taking place within the foreign jurisdiction: as, 
 where goods were put on board a ship in a port of Russia, 
 and the consignors (who are by the law of that country 
 entitled to sue out process, and retake their goods on 
 board any ship, and retain them till they are paid for,) 
 applied to the captain of the ship to sign the bills of 
 lading to their order (which he complied with) without the 
 necessity of suing out process ; — this was held to be a sub- 
 stantial compliance with the Russian law on the part of the 
 captain ; and that he was consequently bound to deliver the 
 goods to the order of the vendors, and not to the assignees 
 of the vendee, wlio had become bankrupt. (1) And where 
 the vendee has no control over the ship, but merely enters 
 into an agreement with the master, for the ship to go to a 
 particular port, and there receive goods on his account, — 
 the delivery of goods on board a ship, under these circum- 
 stances, is not a delivery to the vendee; but the goods 
 may be stopped in transitu, as they might on board a 
 general ship, without reference to the laws of any foreign 
 state. (2) 
 
 But where there is a specijic pledge of a cargo, by express 
 agreement between the parties, accompanied with an in- 
 dorsement and delivery of the bill of lading by tlie con- 
 signor to the consignee, — then, after the goods are once put 
 on board the ship by the consignor, it seems that he has 
 afterwards no right to stop them in transitu. Thus, where 
 a merchant at Liverpool, desiring an extension of credit 
 upon a banking-house in London, agreed (among other 
 securities) to consign certain goods to a mercantile house in 
 London, consisting of the same partners as the banking- 
 house, though under a different firm — and accordingly 
 remitted the invoice of a cargo, and the bill of lading in- 
 dorsed in blank, to the mercantile house — but the cargo 
 was prevented from leaving Liverpool by an embargo, and 
 
 (l) Jnglis\. Uxhcrwood, 1 East, (2) Bohtiinck v. Inglis, 3 East, 
 515. ."KI.
 
 Sect. 7.] AS TO PEHSONAL PROPERTY. 45f 
 
 the consignor then became bankrupt, considembly indebted Stoppage 
 to the bankers; — it was held, that these circumstances " ^ ^^"^' "' 
 amounted to an actual transfer of the goods by the con- 
 signor to the consignee ; and that, upon the delivery on 
 board the ship, they became vested in the consignee. (1) 
 So, whei'e C. advanced money to A., on an express agree- 
 ment from A., that the proceeds of a cargo of fish (which 
 A. had consigned to B. for sale) should be remitted to C, 
 in order that they might constitute a security for the money 
 advanced by C. ; — it was held, that this was an appropriation 
 of the proceeds of the cargo ; which A. could not rescind, 
 by afterwards writing to B., that the cargo was not to be 
 responsible for any advances made by C. ; — for his en- 
 gagement with C. was not like a mere order for payment 
 of money, which might be revoked by a subsequent counter- 
 mand before payment ; — and that B., under these circum- 
 stances, was justified (as against A.'s assignees) in remitting 
 the proceeds to C. (2) 
 
 Though the consignor has a right to stop the goods at As to vea- 
 any time before they reach their journey's end, yet it has s right 
 been said, that if the vendee meet them upon the road, and possession 
 take them into his own possession, the goods will then have °' goods 
 arrived at their journey's end with reference to the right of vova^e 
 stoppage. (3) But in a case, where upon the arrival of a completed, 
 ship at her port of discharge, the assignees of the con- 
 signee (who had become bankrupt) took possession of the 
 cargo, and the ship was afterwards obliged to perform 
 quarantine, during which the cargo was claimed by the 
 consignor, — it was ruled by Lord Kenyon, and his 
 opinion was afterwards approved of by the Court of 
 King's Bench, that the consignor had a right to stop 
 the goods, as the ship had not completed her voyage until 
 quarantine was performed. And he is reported to liave 
 added, that if a consignee had a right to go out to sea 
 
 (I) Hmlle V. Smith, 1 B. & P. {'■X) Fisher v. Miller, iBing. 150. 
 563. J iiiid see Vertue v. Jewell, (3) Per Lord Alviiiiky, 2 B. & 
 4 Camp. 51. P. 461.
 
 4-58 
 
 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Stoppage 
 in transitii. 
 
 Right of 
 stoppage 
 not de- 
 feated, 
 when. 
 
 May be 
 exercised 
 without 
 taking ac- 
 tual pos- 
 session. 
 
 Delivery 
 by mis- 
 take. 
 
 Vendor 
 cannot ob- 
 tain an in- 
 junction 
 to stop. 
 
 to meet the ship, in order to take possession of goods on 
 board Jier before the termination of her voyage, it would go 
 the length of saying, that he might meet the ship coming out 
 of the port from whence she had been consigned, and thus 
 immediately divest the property out of the consignor, and 
 vest it in himself — a position which of course could never 
 be supported, as there would then be no possibility of stop- 
 page in transitu at all. (1) There may, however, be a dis- 
 tinction between carriage by sea, and carriage bj/ land upon 
 this point; for, in the former case, the master of the ship, 
 by signing the bill of lading, agrees wit/i the consignor to 
 deliver the goods at the destined port ; which therefore gives 
 no authority to the consignee to demand them before 
 their arrival (2); — whereas, in the latter case, no such ex- 
 press agreement is entered into between the consignor and 
 the carrier. 
 
 The vendor is entitled to stop the goods in every part of 
 their transit to the place of their destination ; and, therefore, 
 his merely handing over the shipping note and delivery 
 order to the wharfinger before their arrival, was held not to 
 transfer the property so entirely as to defeat his right to stop 
 the goods, by an order to that effect given to the wharfinger 
 two days before their arrival. (3) And the right may be 
 exercised also, without taking actual possession of the goods; 
 — for a claim made by the consignor upon the carrier, or 
 middle man, is sufficient for that purpose. (4) And if a 
 carrier, after notice from the vendor to stop the goods in 
 transitu, deliver them to the vendee by mistake, — the sale 
 to the vendee is nevertheless rescinded ; and the vendor 
 may bring trover for them against the vendee. (5) 
 
 A court of equity, it seems, will not assume a jurisdiction 
 to stop in transitu, notwithstanding the rigJit is recognized 
 in the vendor ; and, therefore, an injunction was refused 
 
 (1) Hoist V. Pownall, 1 Esp. 240. 
 
 (2) Abbott on Shipping, 388. 
 (.3) Ackerman\. Humpkrey, Carr. 
 
 N. P. Rep. 53. 
 
 (4) Hoist V. Potvnall, 1 Esp. 240. 
 Norlhey v. Field, 2 Esp. 613. 
 
 (5) Lilt V. Cotvley, 7 Taunt. 169.; 
 but see Coxe v. Handcn, 4 East, 
 211.
 
 Sect. 7.] AS TO PERSONAL PROPERTY. 469 
 
 to restrain the sailing of a vessel, which contained goods Stoppage 
 
 sold to a person who had become insolvent, though the "' 
 
 vendor retained his right to stop /// transitu. (1) 
 
 The consignor may expressly reserve to himself, the Consignor 
 
 riffht of determininii; isohen he will part with all control "'^^ '^'^T 
 
 serve when 
 over the goods consigned, so as to abandon any further his richt 
 
 right to stop them in transitu. Therefore, where the o^^top- 
 
 ni"'G sliill 
 master of a ship, on board of which the goods were laden, cease. 
 
 gave a receipt fur them to the vendor — which receipt it was 
 
 the practice to exchange afterwards with the master for the 
 
 bill of lading, the holder of the receipt being considered as 
 
 the person alone entitled to the bill of lading, and the 
 
 receipt keeping full control over the goods till given up ; — 
 
 it was held, that though the vendee had got possession of 
 
 a bill of lading of the goods, which had been improperly 
 
 obtained from the master without the consent of the vendor, 
 
 yet that the vendor, continuing in possession of the receipt, 
 
 was entitled to stop the goods in transitu. (2) And so, even 
 
 where the receipt for the goods had been merely demanded 
 
 of the master, and which was refused to be signed by him 
 
 at the time of the delivery on board ; — for the delivery was 
 
 not perfect and complete, until that receipt was given. (3) 
 
 If goods consigned are lodged in the king's stores, on Goods in 
 account of the duties not being paid, the consignor may ^^^^ king's 
 stop them, if he claim them before they are actually sold house, 
 for the payment of the duties ; or if sold, he is entitled to 
 the proceeds after payment of the duties. (4) 
 
 A payment by the consignee, o^ part only of the purchase Payment 
 money, does not bar the right of the consignor to stop the ^^'P^''t> or 
 goods in transitu. [5) Neither is the consignor barred, where of bill'dis- 
 the consignee has accepted bills (which are afterwards dis- lionoured. 
 honoured) on the credit of the consignment; for thei*e is a 
 
 (1) Good/tart v. Loivc, 2 J.& W. (3) Ruck v. Hatfield, 5 B. & A. 
 349. G32. 
 
 (2) Craven \. Ryder, 6 Taunt. (4) Northcijv.Field,2^'i\->.6\3. 
 433. 1 Molt, 100. 2 Marsh. 127 (5) Hodiison\. Loy, I'V.M.'i'iO.
 
 4^60 
 
 OF THE ASSIGNMENT [Ch.U. Pt.2. 
 
 Stoppage 
 in transitti. 
 
 When ac- 
 ceptance 
 equivalent 
 to pay- 
 ment. 
 
 When a 
 transac- 
 tion is in 
 effect a 
 sale. 
 
 A vendor, 
 or con- 
 signor, 
 only can 
 stop. 
 
 A lien does 
 not give 
 the right. 
 
 great difference between actual payment^ and a liability to 
 pay. (1) But it has been ruled by Lord Ellenborough at 
 Nisi Prius, that unless the vendee's acceptance is proved to 
 have been dishonoured^ the consignor has no right to stop 
 in traiisitu ; for he then stands in the situation of a paid 
 seller. (2) And this is consistent with what Lord Chief Jus- 
 tice Abbott lays down in Sowerby v. Brooks, viz. that the 
 acceptance of a bill, which is afterwards duly paid, is equi- 
 valent to a payment at the time of the acceptance. (3) 
 
 But though questions, as to the right of stoppage in 
 transitu, generally occur between a vendor and vendee, yet 
 the right also extends to cases where the contract between 
 the parties is in effect a sale, and the consignor is substan- 
 tially the vendor of the goods. Thus, where a trader here 
 gives an order to his correspondent abroad, to procure and 
 ship for him certain goods, — which the latter procures upon 
 hiscmn credit, without naming the trader here, and ships to 
 him at the original price, charging only his commission ; — 
 the correspondent abroad is so far a vendor, as between 
 him and the consignee, that on the bankruptcy of the 
 latter, he may stop the goods in transitu. (4) But, where a 
 trader here ordered a correspondent abroad to ship him 
 goods, for the amount of which his agent there accepted 
 bills upon receiving a commission ; and the agent also 
 transmitted to the trader the bills of lading which he had 
 received from the trader's correspondent ,- — it was held, that 
 the agent could not stop the goods in transitu, as he was 
 no more than a surety for the price, and neither vendor, 
 nor consignor. (5) 
 
 A mere lien, however, upon goods does not give the 
 consignor the same right to stop m transitu, as the right 
 of property in them does. Therefore, if a man has a lien 
 
 (1) Feisev. Wray, 5 East, 93. 
 Xintochv. Craig, ST.R. 122. 78.3. 
 
 (2) Davis V. Reynolds, 1 Star. 
 
 n5. 
 
 (3) 4 B. & A. 525. ; and see 
 Haivkins v. Penfold, 2 Ves. 550. 
 
 (4) Feisc V. Wray, 5 East, 93. 
 
 (5) Siffkcnv. Wray, 6 East, 371.
 
 Sect. 7.] AS TO PERSONAL PROPERTY. 4$1 
 
 upon goods for work done to them, and he afterwards Stoppage 
 
 delivers them to a carrier, to be conveyed on account and _J ^"' 
 
 at the risk of his principal, he cannot recover his lien by 
 stopping the goods in transitu, and procuring them to be 
 re-delivered to him. (1) 
 
 Wlien a party remits money on a j)articular accoimt, or When vio- 
 for a particnlar purpose, it may be stopped iti transitu ; "^^ ^^^ 
 but not, where it is a general remittance from a debtor to 
 his creditor on account of his debt. (2) 
 
 The consignor of goods for sale, on the joint account of Where 
 himself and the consignee, may stop them in transitu. {^) fohid^Tiv- 
 
 So, where the sale is to a party trading under a licence terested. 
 with an hostile country, a vendor, though an alien enemy, Where 
 is entitled to stop ; for the licence gives to both parties the alien ene- 
 benefit of the contract. (4') i"y. 
 
 As a vendor, who is paid for the goods, cannot stop A paid 
 
 them in transitu, as against the person to whom he sold ^^"''o^ 
 _ *= ... . cannot 
 
 them, — so neither can he exercise this right, on the in- stop 
 
 solvency of a subsequent vendee. Thus, where A. sold goods ^gfi"^^ ^ 
 
 •' ^ . • 1 r 1 subsequent 
 
 to B., (which were then entered m A.'s name m the books vendee. 
 
 of the West India Dock Company) and indorsed and de- 
 livered the dock-warrant to B. ; who afterwards sold the 
 goods to C. on credit, and delivered to him the dock war- 
 rant ; — it was held, that A. could not, on C.'s insolvency, 
 lawfully take possession of the goods, though they con- 
 tinued to stand in A.'s name, and the warrant had never 
 been lodged with the company. (5) 
 
 A vendor is not deprived of his right of stoppage, by any Vendor 
 v^age among carriers to retain goods as a security for the privedof 
 general balance due to them from the vendee ; and may his right 
 reclaim the goods out of the carrier's hands, upon payment of "^^iers 
 of the price only of the carriage of the particular parcel of 
 goods consigned. (6) Neither is a vendee, who has paid 
 
 (l) Sweet V. Pym, 1 East, 4. (5) Spear v. Travers, 4 Camp. 
 
 (.2) Smith V. Bowles, l^?,^. 5ns. 251.; and see eG.I. c. 94. s. 2., 
 
 (3) Newsomv. Thornton, 6 East, and post. 462. 
 
 17. (6) Opjienheim v. Russell, 3 B. 
 
 (4) Fenton v. Pearson, 1 5 East, & P. 42. 
 419.
 
 462 
 
 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Stoppage 
 in transitu. 
 
 the price of the goods to the vendor, deprived of his right 
 to receive them from the carrier, by a similar usage as 
 between the carrier and the vendor. (1) 
 
 Right as 
 between 
 consignor 
 mid third 
 persons. 
 
 Holder of 
 bill of lad- 
 ing to be 
 deemed 
 the true 
 owner, un- 
 less notice 
 to the con- 
 trary. 
 
 2cZ/j/, As to questions between the consignor and third 
 j)ersonSi where there has been a resale, or alienation of the 
 goods by the consignee. 
 
 The right of a consignor to stop in transitu — where there 
 has been a resale or alienation of the goods by the vendee, 
 or consignee, before their arrival or complete delivery to 
 him • — until very lately, depended mainly upon the ques- 
 tion, whether the third person claiming under such resale 
 or alienation, had, or had not, notice, that the consignor 
 had never received payment or value for the goods ; and also 
 upon the acts of the consignor himself, in so far as they 
 amounted either to a preservation of his right of stoppage 
 in transitu — or to an abandonment of it, by his assenting 
 to a perfect delivery or transfer of the goods, whether to a 
 first or a second vendee. 
 
 But the law in this respect has undergone a material 
 alteration by two recent acts of parliament (the 4 G. 4. 
 c. 83., and 6 G.4. c. 94.) — by the last of which (2) [sect. 2.) 
 it is enacted, that where any person is entrusted with any 
 hill of lading, or other mercantile document for delivery 
 of goods, he shall be deemed the true owner of the goods, 
 so far as to give validity to any contract made by such 
 person for the sale or disposition of them, or for the de- 
 posit or pledge thereof, as a security for advances made on 
 the faith of any of such documents ; — provided the person 
 making such advances has no notice, by any of such docu- 
 ments, or otherwise, that the person entrusted therewith is 
 not the actual and hondjide owner. (3) But no person (4), 
 who takes the goods in deposit or pledge, for a debt pre- 
 
 (1) Butler V. Woolcot, 2N.R.64. 
 
 (2) The 6 G. 4. incorporates all 
 the provisions of the 4 G. 4. ; and 
 see post. " Lien." 
 
 (5) And see section 4. 
 (4) Section 3.
 
 Sect. 7.] AS TO PERSONAL mOPERTY. 46^ 
 
 viously due, can acquire any further right, than that of the Stoppage 
 
 person entrusted with such goods or documents. 
 
 By section 4., also, any person may contract with any Sale by 
 
 agent entrusted with goods, or to whom goods are con- »" 'igent 
 
 signed, for the purchase of them ; and may receive the same less pur- 
 
 of, and pay for the same to such a^rent; and such contract ch.iserhas 
 
 ... . . notice 
 
 will be binding upon the owner, notwithstanding the buyer that the 
 
 has notice that the seller is only an agent; — provided the agent is 
 
 contract be made in the usual and ordinary course of busi- ,^2ej to 
 
 ness, and that the buyer, at the time of purchase or of sell. 
 
 payment, had no notice that such agent was not authorised 
 
 to sell the goods. 
 
 It becomes important, therefore, to inquire how far 
 these new enactments interfere with former cases, which 
 involve the right of stoppage m transitu as it affects third 
 persons^ — and which have been hitherto regarded as the 
 landmarks of the law, when a question of this nature has 
 been brought before the courts. 
 
 It was formerly decided by Lord Hardwicke(l), that. As to right 
 though a consignee of goods assigned the bill of lading (2) <'/'^o"- 
 to a third person for a valuable consideration, the con- when con- 
 signor was, nevertheless, under any circumstances previous ^ignee as- 
 I • 1 f 1 1 -11 1 . si^ns the 
 
 to the arrival or the goods, entitled to stop them in bin of 
 
 transitu. But this decision has long ceased to be an lading. 
 
 authority on this particular point, and was first shaken by 
 
 the opinions of the Judges in Lickbarrow v. Maso7i. (3) 
 
 As this last-mentioned case, which was carried through a Lickhar- 
 
 protracted course of litigation, has been hitherto the lead- ^°]F ^* 
 • 1 . 1 . r 1 1 • • Mason. 
 
 mg one upon this branch or the subject, it may not be 
 
 amiss to give some account of it ; though the point which 
 
 was originally determined by it, and which was afterwards 
 
 (1) Slice V. Prescott, 1 Atk. 245. legal effect of the assignment, as 
 
 (2) The first case in the books, between the consignor and the as- 
 that recognized the right of the signee, does not ai)pcar to have 
 consignee to assign the bill of been considered before Snee v. 
 lading, is Evans v. Mar/eft, 1 Lord Prescott, and Wright v. Campbell, 
 Raymond, 271. 12Mod.l56. sSalk. 4 Burr. 204 b. 
 
 290.; which was followed by Ap- (3) 2 T. R. 63. 6 East, 20. in 
 pleby V. Pollock, mentioned in Ab- note, 
 bott on Ship|)ing, 544. But the
 
 464- OF THE ASSIGNMENT [Ch.ll. Pt,2. 
 
 Stoppage contested by two different writs of error, never received a 
 
 i n transit u. ;^^,^/ decision. 
 
 When the case first came before the Court of King's 
 Bench, it was held, that the right of tlie consignor to stop 
 the goods in transitu was divested, by the consignee assigning 
 the bill of lading to a third person for a valuable consi- 
 deration, nsoithout notice on the part of such third person 
 that the goods were not paid for ; — and that there was 
 no distinction, in this respect, between a bill of lading 
 indorsed in blank, and an indorsement to a particular 
 person. This judgment of the King's Bench was after- 
 wards reversed, on a writ of error in the Exchequer 
 Chamber ; upon which occasion, the opinion of the 
 Court was expressed by Lord Loughborough in a very 
 elaborate judgment. (1) The record was then removed 
 into the House of Lords, where the judgment given in 
 the Exchequer Chamber was reversed, and a venire facias 
 de novo (2) was awarded. A new trial accordingly took 
 place ; — when the jury found a special verdict, stating 
 the same facts as had been given in evidence on the 
 A bill of former trial ; and finding also, that by the custom of 
 t"bl"^" merchants, bills of lading were (before the ship's arrival) 
 by indorse- negotiable, or transferable, by the shipper of the goods 
 *"^"'* to any other person — by the shipper indorsing the bill of 
 
 lading, and delivering or transmitting to him the same so 
 indorsed; and that, by such indorsement and deliveiy. 
 As to in- the property in the goods was wholly transferred ; and 
 dorsement aJgo, that indorsements of bills of lading in blank might be 
 filled up by the person (to whom they were so delivered) 
 with words ordering the delivery of the goods to be made 
 to himself; and that the same, when so filled up, had the 
 same operation, as if it had been done by the shipper, when 
 he indorsed (3) the bill of lading. The Court, upon this 
 
 (1) 1 H. B. 357. consignee is not necessary to per- 
 
 (2) 4 Bro. Pari. Ca. 57. feet the transaction between him 
 
 (3) If the bill of lading has been and the third person. Abiiott on 
 indorsed by the consignor, it seems, Shipping, 599. 
 
 that a second indorsement by the
 
 Sect. 7.] AS TO PERSONAL PROPERTY. 465 
 
 occasion, declined entering into a discussion of the case, as Stoppage 
 it was intended to carry it again to the House of Lords, — w rami u. 
 merely saying, that they still retained their former opinion. ( 1 ) 
 It does not appear, however, that the case was afterwards 
 taken up to the House of Lords; — but the doctrine, as 
 laid down by the Court of King's Bench in the first de- 
 cision of it, has been since recognised in subsequent cases 
 involving a similar question. By these cases the following When 
 
 distinction has been established, viz. wherever a bill of i^florsed 
 1 I- • • 1 1-7 ■ 1 • 1 1 1 withnotice 
 
 laclmg is indorsed xoit/i notice tc the indorsee, that the that goods 
 
 goods have not been paid for — or where the indorsee has ^^^'^ "°' 
 notice of the inwlvencij of the consignee — the indorsee then for. 
 takes the bill of lading, subject to the same rights as the 
 original consignee; — and, therefore, the consignor is en- 
 titled to stop the goods in transitu. (2) 
 
 This rule, however, as to notice^ appears to have been Rule as to 
 
 extended in some degree, and not to be confined to money notice, not 
 
 " . . . . -^ confined 
 
 payments ; for the expression, that occurs in the opinions of to money 
 
 the Judges in the cases where the rule was first laid down, payiiients. 
 viz. " without notice that the goods have not beeti paidjbr," 
 it has been since determined, is not to be understood in a 
 restricted sense — but as conveying the meaning of " with- 
 out notice of such circumstances, as would prevent the bill 
 of lading from being fairly and honestly assignable." — 
 Accordingly, where goods were consigned, payable for by 
 the consignee in a bill at three months — and after the con- 
 signee had accepted such bill, and before it was due, he 
 assigned the bill of lading to- another person bondjide for a 
 valuable consideration, — it was held, that though such per- 
 son knew at the time that the consignor had not received 
 actual payment in money for the goods, yet that, after such 
 assignment, the consignor could not stop the goods in 
 transitu ; for, if the indorsee of the bill of ladin»- had known 
 all the circumstances of the case, as they stood between 
 
 (1) 5T. R. 683. 51. Neiusomw. Thornton, 6 East, 
 
 (2) Salomons \. Nissen, 2 T. R. 17.; and see }V7-ig/it\. Campbell, 
 674. Vertue V. Jetvell, 4 Camp. 4 Burr. 2046. 
 
 H H
 
 466 
 
 OF THE ASSIGNMENT [Cll.ll. Pt.2. 
 
 Stoppage 
 ifl transitu. 
 
 Right of 
 stoppage 
 not to de- 
 feat the 
 rights of 
 third per- 
 sons; 
 
 delivery 
 order 
 partly 
 acted on, 
 and goods 
 sold to a 
 second 
 purchaser. 
 
 the consignor and consignee, it was considered, that he 
 would have known nothing which would have made it un- 
 iair, either in the consignee to assign, or in himself to a.c- 
 cept, the bill of lading. Any collusion, however, with the 
 consignee to defeat the just rights of the consignor — as, if 
 the indorsee hieiso that the bill of exchange would not be j^ciid, 
 or that the consignee was insolvent — would have made a 
 difference in the case. But to hold, Lord Ellenborough 
 says, that no bill of lading was assignable, unless the as- 
 signee was perfectly assured that the goods were paid for 
 in monei/, would tend to overturn the general practice and 
 course of dealing of the commercial world (1) on this sub- 
 ject. And this reasoning seems consistent with the prin- 
 ciple of the new enactment, namely, that the transfer of a 
 bill of lading shall convey the property in the goods, unless 
 the person, to whom it is ti'ansferred, has notice that the 
 person transferring it to him is not the actual and bond 
 Jidc owner of the goods. 
 
 The right of stoppage in transitu.^ as it is an equitable 
 right, can only be exercised where it does not interfere with 
 the just rights of third persons. (2) Therefore, where a 
 vendor of tallow (lying at a wharf) gave a written order to 
 the wharfingers to weigh, deliver, transfer, and rehouse the 
 same; and the purchaser sold the tallow again to a second 
 purchaser; upon which, the wharfingers wrote to the second 
 purchaser, acknowledging that they had transferred the 
 tallow to his account — though the tallow had in fact not 
 been weighed since the order of the original vendor, — it 
 was held, that whatever question there might have been as 
 between buyer and seller, in consequence of such omission 
 as to the weighing, yet that the wharjingers (who were sued in 
 trover by the second purchaser) having acknowledged that 
 they held the tallow on Ms account, could not afterwards dis- 
 pute his title, in obedience to any order of the original vendor 
 
 (l) Cuviing V. Brown, 9 East, 
 506. 
 
 (2) Hawesv. Watson, 2B.&C. 
 546. per Best J.
 
 Sect. 7.] AS TO PERSONAL PROPERTY. 467 
 
 to Stop the delivery of it to such second purchaser, not- Stoppage 
 withstanding the original vendor had not been paid by the ^^"" "' 
 first purchaser. (1) So, where the vendee marked a quan- Where 
 tity of timber lying at the vendor's wharf, and a small ^^^^ second 
 part was forwarded by the vendor to one place, and part to t/ic assent 
 another — and the vendee afterwards, and before the time of the 
 of payment arrived, sold the whole to the plaintiff, who vendor, 
 notified such sale to the vendor, and was answered that 
 " it was verj/ iveir — and then, in the presence of the 
 vendor, the plaintiff marked all the timber lying at his 
 wharf, and afterwards marked that which had been for- 
 warded to the other two stages ; — it was held, that the 
 vendor (after such assent to the transfer) could not retain 
 or stop any of the timber as iii transitu, upon the sub- 
 sequent insolvency of the original vendee, to whom 
 payment had been made by the plaintiff — whatever ques- 
 tion there might have been as between the original vendor 
 and vendee. (2) But a 7nere resale of goods by a vendee, Where 
 
 who has never been in possession of the bill of lading, vendee re- 
 • J -1 1 • , , , sells with- 
 
 accompanied even witri payment to Inm by the second out ever 
 
 vendee, will not destroy the vendor's right of stoppage ^^^^"S pos- 
 
 in transitu [2i) — notwithstanding the second vendee pro- the bill of 
 
 cures from the master of the ship (but without the l^dhig. 
 
 consent of the vendor) a bill of lading to be made out to 
 
 himself. 
 
 Before the late acts of parliament (4) above referred to Right of 
 
 (which have so materially altered the law of merchant and consignor 
 \ 11 1 r • 1 "°^^ "e- 
 
 factor, as well as that or consignor and consignee) it was feated by 
 
 determined, that if goods were sent to a consignee as factor. fa^i°^ 
 
 . , . . ^ J nled<Tin"- 
 
 he could not divest the consignor's right to stop them in troods. ° 
 
 transitu, by indorsing, or delivering over, the bill of lading 
 
 as a pledge {5); for it was then considered, that an au- 
 
 (1) Ibid. 540. 1 Ryan & M. 6. (4) 4 G. 4. c. 83. 6 G. 4. C. 94.; 
 
 (2) Stoveld V. Hughes, ] 4 East, and see ante, 462. 
 
 508. (5) Newsovi v. Thornton, 6 East, 
 
 (3) Craven v. Ryder, 6 Taunt. 17. 
 433. 1 Holt, 100. 2 Marsh. 127. 
 
 H H 2
 
 468 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Stoppage 
 in transitu. 
 
 Where en- 
 gagement 
 of con- 
 signor to 
 indorse, 
 equivalent 
 to actual 
 indorse- 
 ment of 
 bill of 
 lading. 
 
 But 
 
 where no- 
 thing equi- 
 valent to 
 indorse- 
 ment, 
 
 thority to sell the goods gave him no right to pawn them. 
 But now, by the 6 G. 4. c. 94-. s. 5., any person may accept 
 any goods, or bill of lading, or other document for delivery 
 of goods, in deposit or pledge of any factor or agent, not- 
 withstanding he has notice that the person pledging is a 
 factor, or agent, — but so as to acquire no further right, 
 than was possessed by the factor, or agent, at the time of 
 the deposit or pledge. ( 1 ) 
 
 The indorsement of a bill of lading is not, strictly, an actual 
 transfer in law of the property/ in the goods therein mentioned, 
 though it is presumptive evidence of such a ti'ansfer — and 
 though the possession of the bill of lading gives now, in 
 fact, the right to dispose of the goods. But the object, and 
 legal effect, of the indorsement may be ascertained by other 
 evidence. (2) And there may be also other circumstances, 
 which may be equivalent to such an indorsement, as against 
 the consignor, or any other person acquainted with those 
 circumstances. As, where merchants in Ireland consigned 
 goods to London to be sold by their factors there, and sent 
 them a bill of lading not indorsed, but saying that the 
 omission was a mistake, and that they would send an indorse- 
 ment — upon which the factors sold the goods — and it after- 
 wards happening, that they were unable to pay bills drawn 
 upon them by the consignors, the plaintiff paid the bills for 
 the honour of the drawers, and, with knowledge of all these 
 transactions, applied to the consignors for an indorsement 
 of the bill of lading, which they sent him ; — it was held, 
 under these circumstances, that the plaintiff had no right 
 to take the goods out of the possession of the vendees of 
 the factors, who were authorized to transfer the property 
 in the goods, and who had actually done so. (3) But, if 
 there be no circumstances equivalent to an indorsement of 
 the bill of lading by the consignor, and the delivery of the 
 goods is specified in the bill to be, to the order of the con- 
 
 (1) And see post, " Lien." 
 
 (2) Abbott on Shipping, 400. 
 Coxe V. Harden, 4 East, 211. 
 
 (5) Dick V. Lumsden, Peake, 189.
 
 Sect. 7.] AS TO PERSONAL PROPEllTY. 469 
 
 signor or his assigns, and the bill of lading is transmitted Stoppage 
 unindorsed; — the holder cannot then, by an attempt to ^""" "' 
 transfer the property of the goods to a third person, di- holder 
 vest the right of the consignor to stop them in transitu.{\) ^^""°' 
 And, indeed, in such a case the third person would, by bill of 
 the terms of the bill of lading itself, have (in the language ^^"'"S* 
 of the new act (2) ) sufficient " notice that the person in- 
 trusted with the bill of lading was not the actual and bond 
 Jide owner of the goods." 
 
 It has been decided, that an unpaid vendor of goods When 
 may stop them before they come to the hands of the transferred 
 vendee's factor, thouijh the factor has the bill of lading; the bill of 
 indorsed to him by the vendee in his hands, and is under vfjc f!°to- 
 acceptances to the vendee on a general account between 
 them. And in such a case, where the factor became bank- 
 rupt, and the messenger under his commission, upon the 
 arrival of the ship with the goods, went on board and 
 seized them after the agent of the vendor had given notice to 
 the captain to deliver the cargo to him, — it was held, that 
 the vendor might maintain trover against the assignees for 
 the goods. (3) The grounds, upon which the judgment of 
 the Court in this case was founded, were, that the bill of 
 lading was indorsed and transmitted by the vendees to the 
 factor, for the express ].mrpose of enabling the factor to sell 
 the goods — without any reference to a loan or balance due 
 to him from the vendee — and without any speci^c pledge of 
 the cargo, or any particular appropriation of the bill of 
 lading to any specific draft or balance, (which it was ad- 
 mitted, would have varied the rights of the parties) — and 
 that an indorsement of a bill of lading made by a vendee 
 to a party, merely as factor, carried his rights no further, 
 than if the bill of lading had been unindorsed. It was 
 also agreed by the Court, that where a factor is incapable, 
 by his bankruptcy, of taking possession of a cargo pre- 
 
 (1) Nix V. Olive, Abbott, 402. (5) Patten v. Thompson, 5 M, & 
 
 (2) 6 G. 4. c. 94. S, 2. S. 350. 
 
 H H 3
 
 470 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Stoppage 
 in transitu. 
 
 viously consigned to him, his assignees, being incapable of 
 performing the duties entrusted to the bankrupt, in respect 
 o^ n l^ersonal coiifidcnce reposed in him, have no right to 
 interpose, and prevent an unpaid vendor Iroin stopping 
 goods in transitu. ( 1 ) 
 
 It is apprehended, however, that this case, if the factor 
 had not become a bankrupt, (when the question, of the 
 transfer of the personal confidence from the factor to his 
 assignees, could not have been raised) would now meet 
 with a different decision under the 6 G. 4. c. 94. s. 2. ; 
 inasmuch as the vendee, being in possession of the bill of 
 lading, must under that act have been deemed to be the 
 true o'voner of the goods, so as to give validity to any con- 
 tract made with any person to dispose of them on his 
 account; and though the indorsement of the bill of lading 
 might have been made to such person merely as factor, yet 
 as a bill of lading is now declared X.c >^e3 the symbol of 
 ovjuersJiip in the goods, so far as to v^i ^c valid any con- 
 tract for the disposal of them, the legal' possession of the 
 bill of lading, even as factor, would, unless his principal 
 interfered, have drawn with it the right to possess the 
 goods, and to hold them as against all persons whatever, 
 in virtue of his lien for the general balance due to him 
 from his principal. 
 
 Section VIII. 
 
 Of Goods sent, but not accepted ; and of Goods ordered, but 
 not delivered. 
 
 Goods de- The assignment does not pass goods delivered by the 
 livered by bankrupt before his bankruptcy, on a precedent consider- 
 rup^" " ation, though they may not be actually accepted by the 
 other party until after the bankruptcy. 
 
 Goods And if goods are consigned to a bankrupt upon credit, 
 
 consigned 
 
 (1) 5M.&S.5S0.
 
 Sect. 8.] AS TO PERSONAL PROPERTY. 471 
 
 who, being apprehensive of his own insolvency, but before Goods jwt 
 the commission of an act of bankruptcy, declines to accept T^'^^' ^ ' 
 
 them, and the consignor consents to receive them back, — the 
 
 goods, in this case, will not pass by the commissioners' as- '^ bank- 
 signment. And the Court will presume a consent in the 
 consignor to receive the goods back(l), unless the con- 
 trary appears. 
 
 So, where after considerable dealings between the vendor When 
 
 and vendee, the latter (whilst some goods that had been contract 
 ' .,, , . . rescinded 
 
 consigned to hnn were still ni transitu) in consequence of before ar- 
 
 his distresses, wrote to the vendor to say, that he was in rival of 
 falling circumstances, and that he would not apply for 
 those goods ; and the vendor, by return of post, answered 
 the bankrupt's letter by saying : " If I find you an honest 
 man, you shall have every indulgence from me," — making 
 no mention of the goods ; but he immediately left New- 
 castle for London, and went to the wharf where the goods 
 were lying, and claimed them of the wharfinger; — it was 
 held, under these circumstances, that the contract, being 
 rescinded before the arrival of the goods, the vendor was 
 entitled to have them delivered up — and that, free from any 
 lien of the wharfinger for his general balance due from the 
 vendee. (2) 
 
 So, also, where goods were sold and actually delivered to Where 
 the clerk of the vendee, and sent by him to the vendee's counter- 
 packer, to prepare them for being shipped to the vendee ; (roods he- 
 and whilst they were in the packer's hands, the clerk re- /^'"^ •^^■ 
 ceived a letter fi'om the vendee, dated before the delivery of ^^^ ^e- 
 the goods, saying, that he was ruined, and adding, "If you ceived till 
 have purchased any goods for my account, or if any orders ^yard's 
 are given out, let the persons have their goods back, and 
 countermand all orders;" — upon which the clerk showed 
 this letter to the vendor, who agreed to take back the 
 goods, though not until after they had been attached on the 
 
 (l) Atkhi V.Bar wick, 1 Str. 165. (2) Richardson v. Goss, 5 Bos. 
 10 Mod. 432. Fortesc. 353. & P. 1 19.; and see Mills v. Ball, 
 
 2 Bos. & P. 457. and ante. 
 
 H H 4
 
 4-72 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Goods not 
 accejjted. 
 
 Return of 
 goods 
 must be 
 made m- 
 stanter. 
 
 same day by some of the vendee's creditors ; — it was held 
 in this case, that the 2)roperty in the goods revested in the 
 vendor, so as to avoid the attachment ; as the countermand 
 of the purchase by the vendee was dated before the delivery 
 of the goods, though not received and assented to by the 
 vendor until after such delivery. (1) 
 
 But in all these cases of a re-delivery of goods to a 
 vendor, the determination of the vendee to reject them 
 must be made iiistanter ; for if the goods are kept by the 
 vendee some time after their delivery — such, for instance, 
 as a period of four months (2) — or even, in one case, of 
 fourteen days (3) — he cannot, when on the eve of bank- 
 ruptcy, restore them to the vendor; for, though there 
 might be no fraudulent concert between the parties, such 
 a transaction would, in fact, amount to an undue preference 
 of the vendor to the vendee's other creditors. Thus, where 
 a vendee at Devizes was in the habit of receiving different 
 parcels of wool from the vendor at Bristol ; and the course 
 of dealing was, that sometimes the wool was sent with, 
 and sometimes without, any specific order, but the vendee 
 had always an option to return each particular parcel, if 
 he had no call for it: — on the \Mh Fchruary the vendor, 
 by order, sent the vendee thirteen bags of wool, which 
 arrived on the 19th, and were then deposited in the 
 vendee's warehouse with his other goods, — though he gave 
 directions not to have them opened, or entered in his 
 books, but only weighed off to see that they agreed with 
 the invoice, as he knew that he was in embarrassed cir- 
 cumstances, and intended not to take them into the account 
 of his stock, if in the event he found himself unable to go 
 on : — on the Mli and 5th March he returned the wools to 
 the vendor, who consented on the 1th to receive them 
 back, which was after an act of bankruptcy committed by 
 the vendee. Under these circumstances it was held, that 
 
 (1) Salte V. Field, 5 T.R. 211.; 
 and see Graff" \. Greffulhe, 1 Camp. 
 89. and ante, 448. & seq. 
 
 80. 
 
 (2) Barnes v. Freeland, 6 T. R. 
 
 (3) iSfeate v. Ball, 2 East, 1 1 6.
 
 Sect. 8.] AS TO PERSONAL PROPERTY. 4«7d* 
 
 the vendee, by keeping possession of the goods so long, Goods not 
 
 had lost his option to return them, which ought to have "f^^^ ^ ' 
 
 been exercised immediately on the receipt ot" them ; and 
 
 the assignees of the vendee were declared to be entitled to 
 
 the wools. ( 1 ) 
 
 And when the ffoods, after being delivered, are 07ice When 
 
 accepted by the vendee, the vendor has then no power to ^°"^ ^, 
 
 reclaim them, as against the assignees of the vendee, — livered 
 
 though the vendee has, in fact, committed an act of bank- ''^""J^'j- 
 ' ' cepted; 
 
 ruptcy between the sale and the delivery of the goods. (2) 
 
 Nor can a vendor reclaim goods, after he has done any act or when 
 
 to recognize the sale. As where, though a vendee wished .^ recog- 
 
 ' o nized bv 
 
 to return the goods (which were then in the hands of a vendor. 
 
 packer) the vendor instituted an attachment against them, 
 as the jwoiiertij of the vendee^ — this was considered to be 
 an election by the vendor, not to rescind tlie contract; 
 and, the vendee having become bankrupt, it was held, that 
 the goods passed by the commissioners' assignment. (3) 
 
 But the commissioners' assignment does not pass goods But bank- 
 contracted to be bought by the bankrupt, in which he has u"P*^ "^"^'^ 
 
 o _ *' . have the 
 
 not the right o'i jtossession.^ as well as the right o{ inopertij. right of 
 
 Thus, where a vendor sold to the bankrupt by contract V^^scssion, 
 various parcels of hops, part of which were weighed, and the ri^ht 
 an account of the weights, together with samples, only, was ^^ P^*^ 
 delivered to the bankrupt — who, not paying for them at the goods to 
 usual time according to the custom of the trade, the vendor P^** 
 gave him notice, that unless they were paid for by a certain 
 day they would be resold : — the hops were not paid for ; 
 and the vendor resold a part with the consent of the bank- 
 rupt before his bankruptcy, and afterwards the residue, 
 without the assent either of the bankrupt or the assignees ; 
 but an account of the sale of the hops was delivered to the 
 bankrupt, in which he was charged warehouse-room from 
 the 30th August: — the assignees demanded the hops of 
 
 (1) Ibid. (3) Smith v. Field, 5 T. R. 402. 
 
 (.2) Has well V.Hunt, cited 5T.R. 
 231.
 
 474 
 
 OF THE ASSIGNMENT [Cll. 1 1. Pt.2. 
 
 Goods 
 ordered, 
 but not 
 delivered. 
 
 Notwith- 
 standing 
 part of the 
 price is 
 paid. 
 
 Goods 
 ordered by 
 the bank- 
 rupt of a 
 manufac- 
 turer, but 
 not de- 
 iivered. 
 
 the vendor, and tendered the warehouse rent and other 
 charges ; and, upon his refusing to deliver them, brought 
 trover ; — it was held, that, under these circumstances, the 
 assignees were not entitled to maintain that species of 
 action, to recover the value of the hops — notwithstanding 
 the jury foinid, that the defendant had not rescinded the 
 contract of sale ; for, in order to maintain trover^ the party 
 must have, not only a right of 'property, but also a right of 
 possession ; and although a vendee of goods may acquire a 
 right oi property by the contract of sale, yet he does not ac- 
 quire the right of possession in the goods, until he pays or 
 tenders (1) the price. So, where the vendor received even 
 700Z. IN PART of the price of goods bought by a bankrupt 
 at certain credit, some of which were in the warehouses of 
 other persons in the vendor's name — and no notice had 
 been given to any of such persons to transfer them into 
 the name of the bankrupt, but they remained after the 
 contract of sale as they did before ; — in this case it was 
 held, also, that the asignees could not maintain trover for 
 them against the vendor, without tendering the remainder 
 of the price. (2) 
 
 So, goods which are ordered by a bankrupt to be made 
 or manufactured — though he has even advanced money on 
 account to the manufacturer equal to the value of the work 
 and materials, and though the work is in fact completed — 
 have been held not to pass to his assignees, unless the 
 article in question has been actually delivered to him — or, 
 unless the manufacturer has done some act to express an 
 unequivocal assent, that the general property should be con- 
 sidered as vested in the purchaser. Thus, where a trader 
 entered into a contract with a barge-builder for a barge; 
 and before the work was begun advanced to him money 
 on account, to the amount, at last, of the value of the 
 barge; and the barge was completed, and the trader's 
 
 (1) Bloxham v. Sanders, 4 B. & 
 C. 911. 
 
 (2) Bloxam v. Morley, ibid, 951.
 
 Sect. 8.] AS TO PERSONAL PROPERTY. 47^ 
 
 name even painted on the stern ; but before it was deli- Goods 
 
 vered, it was taken under an execution by another creditor |^^^^ ^^^f.' 
 
 of the builder ; — it was held, that the assignees of the delivered. 
 
 trader could not recover the barge in trover against the 
 
 sheriff, — on the principle, that a buyer acquires no property 
 
 in a chattel, until it is both finished and delivered to 
 
 him (1) — and that painting the name upon the stern, only 
 
 expressed an intention that the barge should belong to the 
 
 trader, but did not pledge him absolutely to fulfil that 
 
 intention. 
 
 And, where goods previously ordered of a manufacturer Goods 
 
 are not forwarded, or paid for, until the manufacturer has "°* (°''' 
 
 f. , 1 , 1 , warded, or 
 
 committed an act or bankruptcy, they may be recovered paid lor, 
 
 back by his assignees in an action of trover against the before act 
 
 purchaser, — notwithstanding the purchaser had even ac- ruptcy. 
 
 cepted a bill for a larger sum than the price of the goods — 
 
 if there is no evidence of any specijic apjorojpriation of the 
 
 bill, to the payment of the price of the goods. (2) 
 
 But when there is an express apipropriation of payments Where 
 
 made by the bankrupt (before the article purchased of him, ''"^''^ ^^ .^" 
 
 . ctppropri- 
 
 or contracted for, is actually delivered) to the liquidation aLion of 
 
 of the price of the particular article contracted for, — then Payments 
 the property in it will pass to the purchasei-, after any act liquidation 
 of transfer^ — provided he has no notice of any act of bank- of the 
 ruptcy. As, where a ship-builder contracted with B. to P"*^^* 
 build a ship for him, for which B. was to pay, in the pro- 
 gress of the work, by four instalments, the two last to be 
 payable when the ship was launched ; and whilst the ship 
 was building, she was measured with the builder's privity, 
 in order that B. might get her registered in his name ; and 
 the ship -builder for that purpose signed the usual certificate 
 of her building, upon which the ship was registered in B.'s 
 7ia?ne : — on the same day the third instalment was paid ; 
 and after this, and before the ship was completed or 
 
 (_1) Mucklowx. Mangles, iTaimt. (2) Bishop \. Crawshay, 5 B. & 
 318. C. 415.; and see Hurst v. Gtven- 
 
 nap, 2 Star. 306.
 
 476 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2, 
 
 launched, the ship-builder committed an act of bank- 
 ruptcy : — it was held, under these circumstances, that the 
 legal effect of the ship-builder having signed the certificate, 
 to enable B. to have the ship registered in his own name, 
 was, to VEST the general property in the ship in B., from 
 the time when the registry was completed, subject to the 
 ship-builder's lien for the fourth instalment; and that a 
 rudder and cordage, also, which were not affixed to the 
 ship, but which were made and bought by the ship- 
 builder specifically for that purpose, were to be considered 
 as part of the ship ; and that none of this property was in 
 the possession of the bankrupt as reputed owner. (1) 
 
 Assign- 
 ment does 
 not divest 
 a lien. 
 
 Definition 
 of tile 
 term. 
 
 Nature of 
 a lien. 
 
 Section IX. 
 
 Of Goods subject to a LIEN. 
 
 (And see ante, Chapter IX. Section VI. " Of Equitable 
 Mortgages;" and post, Chapter XIX. on " Set 
 Off.") 
 
 The assignment of the commissioners does not divest a 
 tegal^ or equitable, Lien of any party on the bankrupt's goods. 
 This rule is founded upon the same principle, as that which 
 we have often had occasion to notice, viz. that the assignees 
 are bound by all the equities, by which the bankrupt him- 
 self was bound. A Lie7i, in its legal sense, means a right 
 to possess or retain any thing then in the possession of the 
 party, until a just and equitable claim, which he has either 
 in respect of the thing itself, or against the owner of the thing 
 generally, is satisfied. In the first case it is denominated 
 a special, — in the last a general lien. 
 
 Lien subsists either by the common law, the usage of 
 trade, or agreement between the parties ; and as the con- 
 
 (1) Woods V. Russell, 5 B. & A. & C. 419. who distinguishes* thia 
 942.; and see per HolroydJ., 5 B. case from Bishopy.Crawshntj, ante.
 
 Sect. 9.] AS TO PERSONAL PROPERTY. 477 
 
 venience of commerce, and natural justice, are much in ^''^• 
 favor of this species of claim, the courts have, in all cases 
 where a question of lien has been agitated, invariably shewn 
 a disposition leaning towards the person making the claim. 
 They will, therefore, often imply a contract of lien, either 
 from the general course of trade, — or from the nature of 
 the particular mode of dealing between the parties. There Must be 
 can be no lien, however, unless the goods, in respect of possession. 
 which the lien is claimed, have actually come to the pos- 
 session of the party before the bankruptcy of the owner ( 1 ) ; 
 for a constructive possession is not sufficient. {'2) Therefore, 
 where A. consigned a cargo to B., with a direction to pay 
 to C. out of the proceeds a sum of money, and wrote to C. 
 to that effect ; — it was held, that C. in this case had no lien 
 on the proceeds. (3) 
 
 And no one can acquire a greater lien, than the interest No greater 
 which the person pledging, or depositing, the property pos- |?^" ^""' 
 sesses in it himself. Therefore, where a tenant for life that of 
 pledged plate with a pawnbroker, the latter was held to ^^^ P^^'f^ 
 have no lien upon it, after the death of the tenant for life, 
 against the remainder-man, — although the pawnbroker had 
 no notice of the particular limitations of the settlement (4), 
 which created the tenancy for life. So, a person, who has 
 no right whatever to the property himself, can confer no 
 lien by pledging it with another, — though the party bond 
 Jide advances money upon it, without notice of the wrongful 
 possession of the party pledging it. (5) 
 
 A Lien upon goods, also, exists only so long as the Lien exists 
 
 party continues in possession ; for if he once relinquishes j" x 
 
 1^ •' ^ _ . , ^ dunngcow- 
 
 possession, the rule, is that the lien is at an end. (6) There tinuance of 
 are, however, some exceptions to this rule, as where a possession. 
 party \s forcibly turned out of possession of the property — 
 
 (1) Patten V. Thompson, 5M.& (4) Hoare v. Parker, 2 T. R. 
 S. 350. Nicholls V. Clent, 3 Pri. 376. ; and see ex parte Nesbitt, 
 547 . Kinloch v. Craig, 5 T. R. 1 1 9. 2 Sch . & Lef. 279. 
 
 (2) Ibid. Taylor v. Robinson, (5) Hooper v. Ramsbotiom, 
 8 Taunt. 648. 1 Camp. 121. 
 
 (3) Ex parte Haywood, 2 Rose, (6) Krugerv. Wilson, Amb. 252. 
 355. Street V. Pi/m, 1 East, 4.
 
 4.78 
 
 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Lien. 
 
 When it 
 may re- 
 vive. 
 
 When 
 goods pe- 
 rishable. 
 
 When it 
 is waived. 
 
 the lien will revive when he recovers possession (1); and 
 the like in some cases, even whei'e he voluntarily quits pos- 
 session — as, where he delivers it up to the owner upon the 
 faith of an assignment, which afterwards turns out to be 
 invalid. (2) So, where a party, having an equitable mort- 
 gage, delivered up the deeds upon the sale of the estate, 
 and the sale was afterwards set aside (3) — or where he de- 
 livered up a lease to be sold imder an execution, and the 
 execution was invalidated by a prior act of bankruptcy (4), 
 — he was held, in neither of these cases, to have lost his lien. 
 In one case, also, where an insurance broker, having parted 
 with the possession of a policy upon which he had a lien, ob- 
 tained from his principal the policy again, upon pretence of 
 receiving the average ; — it was held, that the lien revived by 
 thus regaining the possession (5): though, perhaps, there 
 may be some doubt as to the correctness of this decision, — 
 as the re-delivery of an article, in order to revive a lien, 
 ought to be strictly for the same purposes, for which it was 
 originally delivered. (6) If, however, the commodity upon 
 which the lien attaches be of a j^erishable nature, the party 
 may, in that case, safely part with it to the owner upon a 
 special agreement with him, that the lien shall await the 
 event of a legal determination. (7) 
 
 A Lien, also, may be waived or abandoned by a special 
 agreement, which contains some term inconsistent isoith the 
 right to retain — as where the parties contract for a par- 
 ticular time and mode of payment; but meYe\y Jixing the 
 price, of labour to be done to any particular article or com- 
 modity, is no abandoment or waiver of any lien upon it. (8) 
 So, where the owner of a ship, having a lien on the cargo 
 until the delivery of good and approved bills for the freight, 
 
 (1) Ex parte Cheesman, 2 Eden, 
 Rep. 181. 
 
 (2) Brown v. Hankey, 2 T. R. 
 11.5. 
 
 (3) Ex parte Morgan, 12 Ves. 6. 
 
 (4) Ex parte Doughty, 1 Mont. 
 Dig. 49.5. 
 
 (5) Whitehead v. Vaitghan, 1 C. 
 B. L. 547. 
 
 (6) And see 2 Christ. B.L. 142. 
 
 (7) 1 Mont. Dig. 492. Whit- 
 aker on Lien, 73. 
 
 (8) Chase v. Westmore, 5M.&S. 
 186. by which some of the older 
 cases on this branch of the subject 
 arc overruledj See Lord Ellcn- 
 boroiigh's judgment.
 
 Sect. 9.] AS TO PERSONAL PROPERTY. 4j7S 
 
 took a bill of exchange in payment, and though he objected Lkn. 
 to it at the time, afterwards negotiated it ; — such negotiation 
 was held to be an approval of the bill, and a relinquishment 
 of his lien. (1) And, where a claim is made to retain the 
 • goods (when they are demanded) on a differe?it ground, 
 without making any mention of the lien, — the party has 
 been held to have abandoned his lien (2); but a simple re- 
 fusal to give up the property, accompanied with the observ- 
 ation of the party, that he " might as well give up eveiy 
 transaction of his life," does not amount to such (3) aban- 
 donment. 
 
 As to how far a delivery of part of the goods will divest 
 the lien of the vendor upon the residue, — see ante, 
 " Stoppage in Transitu." (4) 
 
 Having thus endeavoured to explain generally the nature 
 and legal effect of a Lien^ it is proposed now to enumerate 
 those persons, who, by the usage of trade, or by custom re- 
 cognised by law, are considered as having a general^ or a 
 partiadar, lien — that is, a right to retain property, either for 
 a gejieral balance due from the owner; or for work done, or 
 expenses incurred in respect of the specific article retained. 
 
 A FACTOR has a lien upon all the property of his principal Factor, 
 in his hands, — every thing in his possession being construed 
 to be a pledge, not only for incidental charges, but for the 
 general balance due to him. (5) And he has a lien, also, 
 upon the price of goods sold by him as factor, as well as 
 upcm the goods themselves (6) ; which lien is available even 
 against a claim of the crown. (7) Nor is it any objection 
 to a factor's lien, that he has advanced money to his prin- 
 cipal, or accepted bills drawn on him to the extent of the 
 
 ( 1 ) Horncastle V. Farran, 2 Star. Goditig v. London Assurance Com- 
 590. 3 B. & A. 497. ?J««i/, Burr. 494. Foxcroft v. Be- 
 
 (2) Boardman v. Sill, 1 Camp, vonshire, 2 Burr. 956. Hammond 
 410. n. V. Barclay, 2 East, 227. 
 
 (.5) White V. Gainer, 2 Bing. 25. (6) Drinkwater v. Goodmn, 
 
 (4) Ante, 455. See also ex parte Cowp. 251. Hudson v. Granger, 
 Gwynne, 12 Ves. 379. post. 5 B. & A. 27. 
 
 (5) Kruger v. Wilcox, Amb. 252. (7) Rex v. Lee, 6 Pri. .369.
 
 480 OF THE ASSIGNMENT [Ch. 11. Pt.2. 
 
 Lien. value (1) of the goods — provided the goods come to his 
 "'^^°^' hands before the act of bankruptcy of the principal. (2) 
 But a factor's right to a general lien will not aiFect pro- 
 perty, delivered to him for a special purpose. (3) And he 
 has no lien for a debt due to him before he became a 
 factor. (4) "Where a factor, also, by his bankruptcy be- 
 comes incapable of taking possession of goods consigned 
 to him, his assignees have no right to take possession ; for 
 the consignment is made to the factor, in respect of a per- 
 sonal confidence reposed in him for the performance of those 
 duties, which his principal never intended should be exe- 
 cuted by other persons. (5) 
 As to right A Factor, who, fi'om the very nature of his employment, 
 to oledJe ^^^ ^^^^ ^^^ power given him by his principal to sell goods 
 entrusted to his care, was always considered in law to have 
 no authority to pledge; and could not therefore transfer his 
 lien, as against his principal, to a third person, — even 
 though that person had no knowledge, that he was only a 
 factor (6) ; unless, indeed, the factor (by consent of his prin- 
 Alteration cipal) exhibited himself to the world as owner. (7) The 
 inth^^ law has, however, (as has been before observed (8) ), 
 
 respect. been materially altered in this respect by two statutes (9) 
 lately passed, for the professed purpose of affording better 
 protection to merchants and others entering into con- 
 tracts with factors, or agents. 
 
 By the last of these statutes, the 6 G. 4. c. 94., (which 
 incorporates all the provisions of the former,) it is 
 enacted, that any person entrusted for the purpose of 
 consignment, or sale, with any goods, and shipping them 
 in his own name, shall be deemed and taken to be the true 
 
 (1) Re.vv.Lee, 6Pn.569. Fox- (6) Paterson v. Fash, Str. 1178. 
 croft V. Devomhire, supra. Martini v. Coles, 1 M. & S. 140. 
 
 (2) Copeland v. Stein, 8 T. R. Daiibigny v. Dnval, 5 T. R. 604. 
 199. Shipley v. Kymer, 1 M. & S. 484. 
 
 (5) FFrttterv. JS«>c//, 6T,R. 258. (?) Be Leira v. Edwards, cit. 
 
 Burn V. Brown, 2 Star. 272. 1 M. & S. 147. 
 
 (4) Houghton V. Matthews, 3 B. (8) Ante, 467. 
 
 & P. 485. (9) 4 G. 4. c. 85. and 6 G. 4. 
 
 {5) Paitenw. Thomjison, 5M..& c. 94. ; and see ante, 462. and 
 
 S. 561. 467.
 
 Sect. 9.] AS TO PERSONAL PROPERTY. 481 
 
 Factor. 
 
 owner thereof, so far as to entitle the consignee to a lien ^^^'^ 
 thereon for advances made to the shipper, provided the 
 consignee has no notice by the bill of lading, or otherwise, 
 that the shipper is not the actual and bond Jide owner. 
 And the person, in whose name such goods are shipped, 
 shall be taken to be entrusted therewith for consignment 
 or sale, unless the contrary shall be made to appear by 
 bill of discovery, or otherwise, or be shewn in evidence by 
 any person disputing the fact. By sectioji 5. any person Factor 
 may accept and take any goods, or mercantile document ^T\^^''^ 
 for delivery of goods, in deposit or pledge from any factor or a certain 
 agent, notwithstanding he has notice, that the person ^^•''tent. 
 pledging is a factor or agent ; — but so as to acquire no 
 further right, than was possessed by the factor, or agent, at 
 the time of the deposit or pledge. And this right oi pledg- 
 ing goods (so as to confer the same lien, which the person 
 pledging has himself against the owner) is by sections 
 2. & 3. given to any other person, besides a factor, en- 
 trusted with any mercantile document for delivery of goods, 
 to whom advances may be made on the faith of any of such 
 documents ; — provided the person making such advances 
 has no notice, that the person pledging is not the actual 
 and bond Jide owner. By section 6. the owner of goods, Subject to 
 however, is not prevented from demanding and receiving the rights 
 them from his factor, or agent, before they shall have been owner to 
 sold or pledged, or from the assignees of the factor in case recover 
 of his bankruptcy ; or, from demanding or recovering from repayment 
 any person the price or sum agreed to be paid for the pur- ^^ ^'^^ 
 chase of the goods, subject to any right of set-off on the vanced. 
 part of the purchaser against the factor ; and he may also 
 recover from any person the goods pledged, upon repay- 
 ment of the money, or on restoration of the negotiable in- 
 strument, advanced, or given, by such person on the secu- 
 rity of the goods — and upon payment, also, of such further 
 sum of money, or on restoration of such other negotiable 
 interest, as may have been advanced, or given, by the factor 
 to the owner himself, or on payment of a sum equal to the 
 
 I I
 
 482 ~ OF THE ASSIGNMENT [Ch.ll. Pt. 2. 
 
 Lien. amount of such instrument. If the goods have been sold 
 by such person, then he has a Hen on the proceeds for the 
 amount of his advances. And in case of the bankruptcy 
 of any such factor, or agent, the owner of the goods so 
 pledged and redeemed, will be held to have discharged pro 
 tanto the debt due by him to the estate of the bankrupt, 
 anker. A Banket^ has, also, a general lien upon all the negotiable 
 
 securities in his hands belonging to his customer, for his 
 general balance; unless, indeed, there be evidence to shew, 
 that he received any particular security under special cir- 
 cumstances, which would take it out of the common 
 rule(l); as where a customer deposited a lease with his 
 bankers, without stating for what purpose it was left — in 
 which case it was held, that they had no lien on it for their 
 general balance. (2) 
 Insurance An Ifisurance broker has been held to have a general lien 
 broker. ^^^ ^jj policies in his hands; and, though he parts with 
 the possession of a policy, yet if it come again into his 
 hands, the lien revives. (3) But, if a broker knows that the 
 person, who employs him to effect an insurance, is an agent, 
 and not the principal, the broker has then (in the event of 
 the agent's bankruptcy) no lien upon the policy for any 
 gene7'al balance due to him from the agent — but only for 
 the charges and expenses of effecting that particular 
 policy. (4-) If, however, he has no notice that the policy is 
 not on account of the person from whom he receives the 
 order, he will then have a lien upon it for his general ba- 
 lance due from such person — and have a right, also, to 
 apply to the satisfaction of that balance, money received 
 upon the policy, as well after, as before, notice that it be- 
 longs to a third person ; but, if after notice he pays over 
 
 {l) Davis w.Bowshe)\5T.^.AQ8 . (2) Lucas v. Dorrien, 7 Taunt. 
 
 Jourdaine v. Lefevre, 1 Esp. 66. 164. 1 Moore, 29. 
 Bent V. Fuller, 5 T. R. 494. Giles (.5) Whitehead v. Vaughan, 1 C. 
 
 V. Pe?A-2Hs, 9 East, 12. Bollandv. B.L. 129. Park \. Carter, \h\d. 
 Bygrave, 1 Ryan & M. 271.; and (4) Maanss v. Henderson, 1 East, 
 
 see ante, p. 429. 354. Snook v. Davidson, 2 Camp. 
 
 218.
 
 Sect. 9.] AS TO PERSONAL PROPERTY. 483 
 
 the surplus to the agent, he will then be liable to repay it Lien. 
 to the principal. (1 ) ' ' 
 
 A Packer may, from the viode of dealing with his em- Packer, 
 ployer, be in the nature of a factor, — and entitled, therefore, 
 to a lien upon all goods in his hands, not only for the price 
 of packing, but also for any other debts owing to him. (2) 
 
 So a Wharjinger has a general lien upon all goods de- Whar- 
 posited at his wharf, and left under his (3) care. But ^"S®'"' 
 where the wharfige due upon goods imported was, by the 
 course of dealing between the parties, paid by the importer 
 at the Christmas following the importation, whether the 
 goods were in the mean time removed or not; and the 
 goods were before Christmas sold to A., and after Christ- 
 mas the merchant importer became bankrupt; — it was 
 held in this case, that the wharfinger had no lien on the 
 goods against A. for the wharfage, inasmuch as the course 
 of dealing between the parties was inconsistent with any 
 right to retain. (4') 
 
 A Fidler^ by the custom of the trade at Exeter^ has a lien Fuller, 
 upon goods in his possession, sent to him by a clothier to 
 be fulled, for a general balance due to him. (5) But, ge- 
 nerally, a fuller has only a lien for work done on the par- 
 ticular cloth in his possession. (6) 
 
 So, also, a Dyer has a lien for dying the specific goods, but Dyer, 
 no further (7) ; though, from the usage of the trade in the 
 place or district where he carries on his business, his right 
 may be extended to a lien for his ge?ieral balance. (8) And, 
 
 ( 1 ) Mann v. Forrester, 4 Camp. Bennett v. Johnson, 2 Chitt. Ca. 
 60. temp. Mansfield, 456. 
 
 (2) Ex parte Deeze, 1 Atk. 228. (8) SavUle v. Barchard, 4 Esp. 
 Greeny. J^arwer, 4 Burr. 2222. So. Humphrey s v. Partridge, ^lont. 
 
 (3) Naylor \. Mangles, 1 Esp. B.L, App. 18. Close w.Wutcrhouse, 
 109. Spearsv. Hartley, sEsp. 81. 6 T. R. 523. in note. The places, 
 Richardson V. Goss, 5 B.&P. 124. where this usage has been recog- 
 
 (4) Craiushay v. Homfray, 4 B. nized, are London (4 Esp. 55.), 
 &A. 50. Gloucestershire (Mont. App, 18.), 
 
 (5) Sweet V. Pym, 1 East, 4. and some particular district in the 
 
 (6) Rose V. Hart, 8 Taunt. 499. West of England, per Gibbs C. J., 
 2 Moore, 547. 8 Taunt. 500. 
 
 (7) Green v. Farmer, 1 Bl. 651. 
 
 I I 2
 
 484} 
 
 OF THE ASSIGNMENT [Ch.ll.Pt.2. 
 
 Lien. where an agreement was entered into by a number of dyers 
 "~ at a public meeting, that they would not receive any more 
 
 goods to be dyed, except on condition that they should 
 respectively have a lien on those goods for their general 
 balance, — it was held, that any one, who after notice of such 
 agreement delivered goods to any of those dyers, was to be 
 taken as assenting to their terms — and, consequently, 
 could not demand goods so delivered, without paying the 
 balance of his general (1) account. 
 
 A Printer employed to print certain numbers of an entire 
 work, though not all consecutive numbers, has a lien upon 
 the copies not delivered, for his general balance due for 
 printing the whole of the work. (2) 
 
 So a Calico-printer has a general lien upon the linen in 
 his possession, not only for the price of printing the par- 
 ticular linens, but also for the price of printing others, 
 which have been previously delivered to him. (3) 
 
 A Miller, however, has only a lien upon flour and sacks 
 in his possession, for the price of grinding the particular 
 quantity of corn of which that flour is composed, but no (4) 
 further. 
 
 A Common Carrier is not entitled to a lien for a genei-al 
 balance, upon goods delivered to him for carriage, unless 
 upon special agreement. (5) 
 On a ship. With respect to the particular lien attaching on a Ship^ 
 for repairs, or provisions, — the person repairing has only a 
 lien upon her for the costs, as long as she remains in his 
 possession — the lien ceasing, when possession is parted 
 with. (6) But where a shipwright, by the usage of trade 
 (like that prevailing in the river Thames) gives a certain 
 
 Printer, 
 
 Calico 
 printer. 
 
 Miller. 
 
 Carrier. 
 
 Of a ship- 
 wright. 
 
 (1) Kirhnanv. Shaivcross, 6T.R. 
 14. 
 
 (2) Blake v. Nicholson, 5 M. & 
 S. 167. 
 
 (3) Ex parte Andrews, 1 C.B.L. 
 429. Weldon v. Gotild, 3 Esp. 268. 
 
 (4) Ex parte Ockenden, 1 Atk. 
 255. 
 
 (5) Kirkman v. Shawcross, supra. 
 Aspinall v. Pickford, z Bos. & P. 
 
 44. Oppenheivi v. Russell, ibid. 42. 
 Rxishfield v. Hadjield, 6 East, 519. 
 7 East, 224. 
 
 (6) Watkinson v. Bernardiston, 
 2P. W. .567. Ex parte Shank, 
 1 Atk. 234, Wilkins v. Carmichael, 
 Doug. 97. Ex parte Bland, 2 Rose, 
 91. Woods V. Russell, 5 B. & A. 
 942. Ex parte Hill, 1 Mad. 61. 
 Franklin v. Hosier, 4 Bi & A. 341.
 
 Sect. 9.] AS TO PERSONAL PROPERTY. *^^ 
 
 credit to the ship-owner for the amount of the repairs, '^"' 
 
 Lord Ellenborough held, that in this case he had no lien, 
 without an express agreement for that purpose; — for that 
 the lien of an artificer was wholly inconsistent with a dealing 
 on credit; and could only subsist, where payment was to be 
 made the moment the work was completed, and where 
 there was an immediate right of action for the debt. (1) If, 
 however, the repairs or the refitting take place in a port 
 abroad^ then, for the necessity and encouragement of trade, 
 the lien continues, though the ship is out of the possession 
 of the party (2) ; for, by the maritime law, any contract 
 of tlie master for repairs, or provisions, amounts to an hy- 
 pothecation of the ship. (3) But, where bills of exchange 
 were given by the captain for advances made to him 
 abroad, which were not precisely shown to have been ap- 
 propriated for the use of the ship — and the bills did not 
 appear upon the face of them to have been drawn for the 
 purposes of the ship, — such bills were held, prima facie, 
 evidence against the inference of the advances being made 
 on the credit of the ship itself (4) Though the master, how- Of the 
 ever, can hypothecate a ship for repairs done abroad, he 
 has no lien himself on the ship for money expended by him 
 in respect of those repairs ; — for it does not follow, be- 
 cause others through him acquire a lien on the ship, that 
 therefore he himself has such a lien, — a lien being fre- 
 quently derived through the act of a servant, which the 
 servant himself does not possess. (5) Neither has the 
 
 (1) Raitt V. Mitchell, 4 Camp, can be created by parol; — but 
 146. this position would be contrary tb 
 
 (2) Ex parte Shank, 1 Atk. '234. all the cases, which decide, that a 
 Watkinson v. Bei-nardiston, supra, party, furnishing the ship with re- 
 and the cases there cited in note. pairs and necessaries abroad, has a 
 
 (3) Justin V. Ballain, I Salk. 34. lien upon her, without any instru- 
 
 (4) Ex parte Halkett, 2 Rose, ment of express hypothecation. 
 229. 19 Ves. 474. 2 Rose, 194. 1 Atk.254. 2P.\Vnis. 567. 1 Salk. 
 sV. &B. 155. Lord Eldon is re- 54,; and see Hussei/ v. CJiristie, 
 ported to have said in this case, 13 Ves. 599. 
 
 that a ship may be bound by bill (5) Wilkins v. Carmichael, Doug, 
 
 of sale, but not by parol; — from 101. Hussey v. Christie, 9 East, 
 
 which the reporter has inferred 426. Abbott on Shipping, 419. 
 generally, that no lien on a ship 
 
 1x3 
 
 master.
 
 486 
 
 OF THE ASSIGNMENT [Cll. 1 1 . Pt.2. 
 
 As to the 
 freidit. 
 
 Ship 
 owner 
 
 Lieii. master any lien on the ship for his wages; — his case, in 
 this respect, being distinguished from that of all other per- 
 sons belonging to the ship. (1) And, as a lien on the 
 fy-cight is always consequential to a lien on the ship, he has 
 also no lien on the freight, either for his wages, or disburse- 
 Consi^nee ments on account of the ship. (2) But the consignee of a 
 of a ship, sijip for sale, to whom the ship and register are delivered, 
 has a lien upon her, for money expended for repairs and 
 seamen's wages. (3) 
 
 The Onmer of a Ship has a lien on the cargo for the 
 freight ; but his lien is confined to the amount of freight 
 for goods actually carried, and cannot be extended to his 
 claim for what is called dead freight, that is, an unliquidated 
 compensation for the loss of freight, by reason of the 
 freighter not putting a full cargo on board. (4) And where 
 the parties to a charter-party mutually bound themselves, 
 especially the ship-owners, the ship, tackle, &,c., and the 
 freighter, the goods to be put on board, in a penal sum for 
 the performance of the conditions of the charter-party, — 
 yet this was held not to give the owner a lien on the cargo 
 for dead freight, or demurrage ; for, as the clause was in- 
 tended to be mutually obligatory, and the freighter had in 
 that case no lien on the ship, the Court said, it would be 
 therefore absurd to hold, that the clause gave a lien on one 
 side, without the like remedy on the other. (5) "Where the 
 owner also has by the contract of charter, in letting the ship 
 to freight, -parted xvith the actual possession of the ship, he 
 can then have no lien for the freight on the cargo ; as the 
 cargo, in this case, was never in his possession. (6) But, 
 where there are no express words of demise in the 
 charter-party of the ship itself, the mere occupation of the 
 ship by the freighter will not prevent the owner from being 
 
 (1) JVil/cins V. Carmichael, supra. 
 
 (2) Smith V. Pluvwier, 1 B. &: A. 
 575. Atkinson v. Cotesworth, 3 B. 
 &C. 647. 
 
 (3) Hammonds V. Barclay, 2 East, 
 227. 
 
 (4) Phillij)sv.JRodie, l5Ea8t,547. 
 
 (5) £irle2/ v. Gladstone, 3 M. & 
 S. 205. 
 
 (6) Vallejo v. Wheeler, Cowp. 
 143. Tiinity Home v. Clark, 4 M. 
 & S. 228. Haiton v. Brigg, 2 Marsh. 
 339. 7 Taunt. 114.
 
 Sect. 9.] AS TO PERSONAL PROPERTY. -tS? 
 
 considered still in the possession of the ship, so as to pre- "Lien. 
 serve his lien.(l) Part-owners of a ship are tenants in 
 common, and not joint-tenants; and, therefore, if one be- 
 comes a bankrupt, being indebted to the other owners for 
 outfit, freight, and as managing owner, they have no lien 
 on his share for their debt; but his share passes to the 
 creditors under the bankruptcy. (2) 
 
 A vendor of real property is, as we have seen (3), entitled Vendor 
 to an equitable lien upon an estate sold, for so much of the property, 
 purchase money as remains unpaid, unless the vendee can 
 show, that the lien has been clearly relinquished by the 
 vendor. (4) For, though the conveyance of the property 
 states (contrary to the fact) that the purchase money is paid, 
 and the estate passes by the conveyance at law — it does 
 not, in equity^ until actual payment, notwithstanding even a 
 receipt for the money is indorsed upon the deed. (5) This 
 lien, however, is held to be abandoned, by the vendor's ac- 
 ceptance of a security for the purchase-money from some 
 other person, when it appears that credit was given ex- 
 clusively to such person. But the vendor's lien is not dis- 
 charged by taking bills of exchange, or other negotiable 
 securities, for the purchase-money payable by other per- 
 sons ; as these are considered, not so much in the nature of 
 a security, as of a mode of payment. (6) Where, however, 
 there was a covenant between the vendor and purchaser, 
 that the purchase-money should be paid within two years 
 after the re-sale of the premises, — that was held to dis- 
 charge the vendor's lien, as it afforded evidence, that the 
 vendor meant to rely on the personal security of the pur- 
 
 (1) Tate V. Meek, 2 Moore, Hughes v. Kearney, 1 Sch. & Lef. 
 278. Yates v.'Railston,'^\di.2^A. 132. Mackreth\. Summons, \5Y&s. 
 SaviUe v. Campion, 2 B. & A. 503. 329. ; and see Blackburn v. Greg- 
 
 (2) Ex parte Young, 2 Ves.& B. son, 1 Bro. 424. Eden's ed. (note.) 
 242. Ex parte Harrison, 2 Rose, (5) Wintcrv. Lord Anson, 1 Sim. 
 76.; but see Doddington v. Hallett, & S. 444. 
 
 1 Ves. 497. contra. (6) Grant v. Mills, 2 Ves. & B. 
 
 (3) Ante, page 209. 306. Ex parte Loaring, 2 Rose, 
 
 (4) Chajiman v. Turner, 1 Vern. 79. Ex parte Peake, 1 Mad. 346. j 
 267. Austin y, Ualsey, 6 Ves. 475, and see Sugden V.&P. ch. 12, 
 
 I I 4
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Lien. 
 
 Vendor of 
 
 personal 
 
 property. 
 
 Equitable 
 lien on 
 goods. 
 
 chaser. ( 1 ) And where a bo7id was executed by the vendee 
 for payment of the purchase-money and interest at the 
 death of the vendor, — the Vice-Chancellor decided, that 
 the vendor had no Hen on the estate ; for that when the 
 bond was executed, the estate passed to the vendee in 
 equity, as well as at law. (2) 
 
 In the case of the sale of a lease and furniture^ though 
 the vendors had brought an action and obtained judgment 
 against the purchaser for the amount of the purchase- 
 money, yet, as possession had not been actually delivered 
 up, Lord Eldon thouglit that the vendors had a lien upon 
 the furniture, as well as the house, as against the assignees 
 of the purchaser. (3) But, where timber felled was sold to 
 a trader, who became a bankrupt after having taken away 
 part. Lord Eldon considered it doubtful, whether the 
 vendor had a lien for the purchase-money upon the re- 
 mainder ; as it was questionable, whether such a delivery 
 had not taken place, as was sufficient to vest the whole 
 of the timber in the purchaser. (4) 
 
 In cases of an equitable lien oji goods generally, that is, 
 where the real and beneficial interest in property is in a 
 creditor at the time of his debtor's bankruptcy, though the 
 legal estate is in the bankrupt, — the assignees are subject to 
 the same equities as the bankrupt himself, and will not, in 
 such a case, be permitted to take advantage of the relation 
 to the act of bankruptcy. Thus, where a trader makes an 
 assignment of goods at sea, as a collateral security for a 
 debt — and then commits an act of bankruptcy -7- and after- 
 wards indorses the bill of lading to the creditor, — the cre- 
 ditor is entitled to the goods as against the assignees. (5) 
 But where goods, upon which the creditor of a trader [before 
 an act of bankruptcy committed by him) had an equitable 
 
 (1) Ex parte Parkes, 1 G. & J. 
 228. 
 
 (2) Winter V. Lord Anson, supra; 
 and see Cood v. Pollard, 9 Pri. 544. 
 lOPri. 109. 
 
 (5) Ex parte Lord Seaforth, 
 1 Rose, 506. 
 
 (4) Ex parte Gwynnc, 12 Ves. 
 379. 
 
 (5) Lempriere v. Pasley, 1 T. R. 
 485.; and see post, Chap. XVI. 
 " Relation."
 
 Sect. 9.] AS TO PERSOl^rAL PROPERTY. 489 
 
 lien, are no longer in existence, — such lien will not, in Lien. 
 that case, attach upon other goods, substituted for the former 
 by the trader after he had committed an act of bank- 
 ruptcy. (1) Therefore, where a merchant pledged for value 
 the bills of lading of an expected cargo, and his agents 
 abroad (without his knowledge) disposed of part of the 
 cargo; after which, having committed an act of bank- 
 ruptcy, he induced his agents to replace the goods by 
 others, and then sent the bills of lading of the substituted 
 goods to the pawnees of the former cargo, in order to 
 make good their security ; — it was held, that the assignees 
 might recover the substituted goods in trover against the 
 pawnees. (2) 
 
 But the general lien of a vendor of goods, for the amount Vendor of 
 of the price, exists only during such time, as the goods ^ 
 are not actually delivered to the vendee. What acts will 
 amount to such a delivery, so as to divest him of this lien, 
 have been already considered in treating of the right of 
 " Stoppage in transitu." (3) 
 
 As to the lien of an attorney and solicitor, see post. Attorney. 
 Ch. 22. 
 
 And as to a landlord's lien for rent, see ante, Ch. IX. Landlord. 
 Sect. XVII. 
 
 A creditor, having a lien on property in his hands. Proof, a 
 waives his lien if he proves his debt (4), or even obtains ]jg„ 
 an order to prove (5); and will in either of such cases 
 be directed, on petition, to deliver up the property to the 
 assignees. 
 
 (1) Meyer v. Sharpe, 5 Taunt. (4) Ex parte Solomon, 1 G. & J. 
 74. 25. 
 
 (2) Ibid. (5) Ex parte Hornby, Buck, 35 1 . 
 (5) Ante, page 452.
 
 490 
 
 OF THE ASSIGNMENT [Ch.ll. Pt.2. 
 
 Crown 
 may issue 
 process for 
 its debt 
 before as- 
 signment. 
 
 Operation 
 of an 
 extent. 
 
 Necessity 
 of provi- 
 sional as- 
 signment. 
 
 Section X. 
 
 Effect of the Assignment upon the Claims, and Process, of 
 the Cro'ian. 
 
 The Crown — not being bound by the provisions of any 
 act of parhament in which it is not expressly named, and 
 not being mentioned by the present, or indeed by any 
 former bankrupt act, among the general creditors of the 
 bankrupt — is not barred, therefore, of any of its paramount 
 rights over the other creditors ( 1 ) ; and may consequently 
 issue process for the recovery of its own debt, notwith- 
 standing a commission of bankruptcy is sued out against 
 its debtor. But this is only before an actual assignment of 
 the bankrupt's property by the commissioners; for, after 
 the'assignment, the property is wholly changed and divested 
 out of the bankrupt. (2) 
 
 An extent served upon the property of the bankrupt 
 he/ore assignment will bind from the teste of the writ (3); 
 and it seems, that it has the same operation upon debts due 
 to the bankrupt, as upon goods in his possession, and that 
 both are equally bound from the teste of the writ (4) ; 
 though it has been decided, in cases where the king's 
 debtor himself was before the Court, that debts were only 
 bound from the teste of the inquisition. (5) And the Crown 
 will not be prejudiced by any fraction of a day ; for though 
 the extent is tested the same day as the assignment, the 
 Crown, it has been held, will be preferred. (6) 
 
 When it is apprehended, therefore, that any extent will 
 issue against the bankrupt's property, the commission 
 
 (1) Ex parte Russell^ 19 Ves. 
 16.5. 
 
 (2) Rex V. Cotton, 2 Ves. 295. 
 
 (3) Audley v. Halsey, Sir W. 
 Jones, 202, Rex v. Pixley, Bunb. 
 202. Rex V. Bewdley, 1 C. B. L. 
 572. Lechmere v. Thuroiighgood, 
 
 3 Mod. 236. Roake v. DayreU, 
 
 4 T. R. 408. 
 
 (4) Queen v. Arnold, 7 Vin. 104, 
 
 S. C. West on Extents, 327. ; and 
 see ibid. 164. 
 
 (5) Attorney General v. Elwall, 
 Bunb. 199. Rex v. Green, ibid. 
 265.; and see Rex v. Glenny, 
 2 Pri. 396. 
 
 (6) Rex V. Crumpton, Parker, 
 126.; cit. 2 Ves. 295. Sed vide post, 
 Ch. 16. s. 4.
 
 Sect. 10.] AS TO PERSONAL PROPERTY. 491 
 
 should be sealed with all possible dispatch, in order that Process of 
 
 the party may be adjudged a bankrupt, and a provisioj^al ' 
 
 assig7imait executed forthwith to bar the process of the 
 Crown. Of so great importance, indeed, is this proceed- 
 ing to the interest of the bankrupt's general creditors^ that 
 Lord Eldon, upon one occasion of this kind (that of Castell 
 and Poxvell's bankruptcy) did not complain of being called 
 up in the middle of the night to seal a commission, with 
 the avowed object of preventing an extent, — considering 
 it his duty, as he said, to hold an even hand between the 
 Crown and the subject. (1) 
 
 If an extent is issued against one partner, the Crown can Extent 
 only take the separate interest of the partner; and that, ^g^'"*"*^ 
 liable to the partnership debts. (2) ner. 
 
 When property of various description is seized under an Crown has 
 extent issued for a debt due to the Crown, the Crown has ^ "S"t to 
 a right to elect out of which species of property it will be 
 satisfied its debt, before any other creditor of the bankrupt, 
 having a claim or lien upon any portion of that property, 
 can insist upon such claim. (3) 
 
 Although the bankrupt's effects taken on an extent have Assignees 
 been sold (under a venditioni exponas) in default of claim, this "i° j'^j"u , 
 does not conclude his assignees ; and they will be allowed, goods 
 on application, to enter their claim, and plead in such a "S ''olc!, 
 case, on payment of the costs of the sale and the appli- 
 cation, and putting the prosecutor of the extent in the 
 same situation, as if the claim and plea had been entered in 
 due time (4) ; and the delay of a month is not considered 
 as laches on the part of the assignees (5), though any con- 
 siderable delay will strongly prejudice their claim. (6) 
 
 The prerogative of the Crown to recover its debt by the Of extents 
 summary process of extent, is extended as a privilege to 
 the king's debtor, in order that the Crown may be more 
 
 (1) Wydownh case, 14Ves. 88. (4) Rex v. Adams, 5Pri.39. 
 
 (2) Rex V. Saunderson, Wightw, (5) Ibid. 
 
 50. ' (G) Rex V. Jones, 8 Pri. 108. 
 
 (s) Ex parte Rowton, 1 Rose, 
 15. 17Ves. 426.
 
 492 
 
 OF THE ASSIGNxMENT [Ch.ll. Pt.2. 
 
 Process of 
 the crown. 
 
 restric- 
 tions as 
 to issuing 
 them. 
 
 To what 
 debts their 
 operation 
 confined. 
 
 speedily satisfied its own debt ; and this species of extent 
 is called an extent in aid. Great abuses, however, having 
 been committed in the issuing of these extents, and grievous 
 injustice often occasioned by them to the general creditors 
 of a bankrupt, they have been limited in their operation 
 by the salutary provisions of a recent act of parliament, 
 passed in the latter part of the last reign. (1) By this 
 act (2) the king's debtor cannot levy under an extent in aid 
 more than the amount of the debt which he himself owes, 
 notwithstanding his own debtor, against whom the extent is 
 issued, may owe him a larger debt. And with respect to 
 the remainder of his debt, he is put upon the same footing 
 as every other creditor. An extent in aid, also, cannot be 
 sued out by any {3) simple contract debtor to the Crown; 
 nor by any person indebted to his majesty by bond, for 
 paying any particular duty which shall be payable in 
 respect of his trade or calling ; nor by any sub-distributor 
 of stamps, who may have given bond to his majesty ; nor 
 by any person who shall give bond as a surety only for 
 some other debtor to his majesty, until such surety shall 
 have made proof of a demand having been made upon 
 him on behalf of his majesty, and then only to the amount 
 of such demand. But these restrictions are not to ajfiPect a 
 person, who may become a debtor to the king as a collector 
 of revenue^ by simple contract, in case he shall be bound 
 by bond, or specialty of record in the exchequer, for paying 
 over to his majesty the particular duties which shall con- 
 stitute the debt, that may be then due from such person to 
 his majesty. And no extent in aid (4) can issue on a bond 
 given by any surety^ for the payment of duties due from 
 any insurance company. 
 
 In order, also, to relieve the bankrupt's creditors from the 
 operation of any fraudulent extent in aid, it is by section 71* 
 of the new bankrupt law provided, that if any real or per- 
 
 (1) 57 G.5. C.117. 
 
 (2) Sections 1, 2, 3. 
 
 (3) Section 4. 
 
 (4) Section 5.
 
 Sect. 10.] AS TO PERSONAL PROPERTY. 493 
 
 sonal estate, or debts of any bankrupt be extended, after Process of 
 he shall become bankrupt, by any person, under pretence ' ^^ crown . 
 of his being an accountant of or debtor to the king, the 
 commissioners may examine upon oath, whether the debt 
 was due upon any contract originally made between suck 
 accountant and the bankrupt ; and, if made with any other 
 person, then the commissioners may sell and dispose of the 
 bankrupt's estate and effects, and the sale will be vahd 
 against the extent and all persons claiming under it. 
 
 But, by a statute passed in the last session of parliament New bank- 
 (7 G. 4. c. 30. s.l.)} it is declared, that the new statute re- ^"'^ ^^ 
 lating to bankrupts shall not extend to repeal, alter, or affect the 
 abridge any powers or provisions for enabling the com- of^/^^Q^g. 
 missioners for the execution of the act(l), (authorizing the c.34. 
 advance of money for carrying on public works and fisheries, 
 and for the employment of the poor,) or of any subsequent 
 acts for amending or extending the said act, to enforce pay- 
 ment of any loan or advance made by them, in case of the 
 bankruptcy of any party to whom such loan or advance has 
 been, or shall be made, or in case of the bankruptcy of 
 the sureties of any such party. 
 
 In the 57 G. 3. c. 34. (the act which authorizes such ad- 
 vances for public works and fisheries) there is a limiting 
 clause, that no person, borrowing money under the pro- 
 visions of that act, shall be liable for more than the amount 
 of his subscriptions or shares in the public work, for carry- 
 ing on which the money was borrowed. This clause is 
 omitted in the subsequent act of the 3 G. 4. c. 88. ; and it is 
 provided in the last-mentioned act, that all the enactments 
 of the 57 G. 3. shall continue in force, except where the 
 contrary is expressed. But, though nothing expressly alter- 
 ing that clause is mentioned in the last act, yet it was holden 
 by the Vice- Chancellor to be quite clear, that the limiting 
 clause, from being omitted in the last act, was intended to 
 be repealed. (2) 
 
 (1) 57 G. J. c. 34. William Elford, sittings after Trin, 
 
 (2) Ex parte Holden, in re Sir T. 1826.
 
 494 
 
 OF THE ASSIGNMENT [Cll.ll. Pt.2. 
 
 Process of 
 the croivn. 
 
 When an 
 immediate 
 debtor to 
 the Crown 
 may sue an 
 extent in 
 aid. 
 
 Operation 
 of warrant 
 of the com- 
 missioners 
 of the land 
 tax. 
 
 As to a 
 recogni- 
 zance. 
 
 As to lien 
 of crown 
 for excise 
 duties. 
 
 An immediate debtor to the Crown — to whom money 
 had been paid by the district collector of excise, and who 
 had entered into the usual bond to the Crown to pay over 
 the money, or remit good bills for the amount within twenty- 
 one days after the receipt of it — is not entitled to sue out 
 an extent in aid, unless there has been, in point of fact, a 
 literal breach of the condition of the bond.(l) But the Court 
 of Exchequer will not interfere, on the behalf of the as- 
 signees of a bankrupt, to set aside an extent in aid, if there 
 is any doubt, whether there is a debt due from the prose- 
 cutors of the extent to the Crown, or not. (2) 
 
 Money collected for the Imid tax, in the hands of the 
 collector, is a debt due to the king; and a Xi^arrant from 
 the commissioners of the land tax, executed before the assign- 
 ment, will bind the property, though it be not removed 
 until after the assignment. But the warrant of the com- 
 missioners is not equal in its operation to that of an extent ; 
 for it only binds the goods from the time of seizure, and 
 not from the date of the warrant. (3) After the execution 
 of a warrant, if the effects seized under it are insufficient 
 to pay the whole debt due to the Crown, an extent may 
 also issue for the same debt. (4) 
 
 A mere recognizance (though a debt upon record due to 
 the Crown) has no operation upon the bankrupt's property, 
 until some process of seizure is issued upon it. (5) 
 
 Independently of the rights which the Crown possesses 
 against its general debtor by process of extent, the different 
 'Excise acts (imposing duties on various articles) give it, in 
 most cases, an absolute lien upon the subject matter of the 
 duty, and the utensils employed in the manufacture of it. 
 Thus, where an information was exhibited against a candle- 
 maker (though after a commission of bankruptcy had issued 
 against him, and even after assignment) for non-payment of 
 
 (1) Rex V. Tarlton, 9 Pri. 647. 
 
 (2) Evans v. Solly, 9 Pri. 525. 
 (5) Brassey v. Dawson^ 2 Str. 
 
 977. 
 
 (4) Rex V. Jones, supra. 
 
 (5) Ex parte Usher, 1 Ball& B. 
 197. 1 Rose, 566.
 
 Sect. 10.] AS TO PERSONAL PROPERTY. 495 
 
 the single duties upon candles, and he was convicted in the Trocesa of 
 penalty of double duties, — the Court of King's Bench held, '^J^^- 
 that all the candles, materials, and utensils in the hands of 
 the assignees were liable to the payment of the double 
 duties. (1) So, where malt duties were unpaid at the time 
 of the execution of the assignment, the malt in the hands 
 of the assignees was held to be subject to the payment of 
 the duties, and liable to be seized under an extent issued 
 after the date of the assignment. (2) 
 
 But, as the lien given under the Excise acts is only upon Lien only 
 the pai'tiadar goods or articles, to which the duty attaches, — °"ods°t ^ 
 a warrant, therefore, to levy a duty, or a penalty, upon a which duty 
 bankrupt's goods generally [after the commissioners' assign- attaches. 
 ment) is bad, — and will not justify even a seizure of the 
 very articles, to which the duty, or the penalty, does really 
 attach. Thus, where a soap-maker incurred a forfeiture for 
 concealing soap contrary to the 1 G. 1. c. 36. s. 2. ; and on 
 his becoming bankrupt, a provisional assignment of his 
 estate was executed, and afterwards the soap was con- 
 demned, and the bankrupt convicted ; — a warrant to levy a general 
 on his goods generally was held illegal, as being a warrant warrant 
 against all the bankrupt's goods, when only some of them to levy on 
 were liable. (3) So, where under the 3 G.4. c.95. s. 10., «^^ goods, 
 the Crown had a lien on certain stage-coaches, horses, &c., ° 
 in respect of duties accruing thereon, — it was held, that 
 such lien only extended to the particular duties on each 
 coach, &c., and not to the general stock of the party. (4) 
 
 In the case of assessed taxes being in arrear from the Lien for 
 
 bankrupt(5), — his goods and chattels, before removal by the ^^^^^^ed 
 
 r v. /7 tj ' J , ^ taxes, pay- 
 
 assignees, are liable to the collector for all arrears of duties able for 
 due at the time of their taking possession of the goods, or '^"^ y^^^'' 
 which shall be payable for the year, in which they shall 
 so take possession. If the duties are claimed for more 
 
 (1) Stracey v. Hulse, 2 Doug. (5) Austin y. Whitehead, 6T.R. 
 411. 436. 
 
 (2) Atlorney General v. SenioVy (4) In re Day, 1 M'Clell. & Y. 
 and Rex v. Fowler, 2 Doug. 416. 384. 
 
 (5) 43 G. 3. c. 99. S.37.
 
 496 
 
 OP THE ASSIGNMENT, &C. [Ch.ll. Pt.2. 
 
 Process of 
 the crown. 
 
 Assignees 
 of army 
 agent 
 bound to 
 rentier ac- 
 count of 
 unclaimed 
 balances. 
 
 than one year, the assignees may take the goods on paying 
 the collector one year's duties ; and if they refuse to do this, 
 then the collector may distrain for the whole arrears of 
 duties. 
 
 Where an army agent became bankrupt, the assignees 
 were held bound to render an account to the Crown of 
 unclaimed balances (remaining in the hands of the bank- 
 rupt) on money intrusted to and received by him, on ac- 
 count of officers belonffinij to the several regiments for 
 which he was agent, — and also a statement of their names 
 and ranks; and that^ for any period of time during the 
 agency, however remote ; which accounts the Crown is 
 entitled to demand from any agent under the 45 G. 3. c. 58. 
 And the attorney-general may compel the assignees ta 
 furnish such an account, by filing an information against 
 them and the bankrupt in the Court of Exchequer. (1) 
 
 (1) Attorney General v. Ross, 8 Pri. 190.
 
 497 
 
 CHAP. XII. 
 
 OF THE DIVIDEND. 
 
 Sect. 1 . Of the Jir&t Dividend. 
 
 2. Of the second and the final Dividend. 
 
 3. Of tmclaimed Dividends. 
 
 4. How a Dividend is to be 7-ecovered. 
 
 Section I. 
 
 Of the frst Dividend. 
 
 j3y sectiori 107.(1) the commissioners are directed, not When 
 sooner than four, nor later than twelve calendar months *'^k/" 
 from the issuing of the commission, to appoint a public made, 
 meeting, (whereof twenty-one days' notice is to be given in 
 the Gazette) to make a dividend of the bankrupt's estate ; at 
 which meeting all creditors, who have not before proved 
 their debts, are entitled to prove them ; and the commis- 
 sioners are then to order such part of the net produce of 
 the bankrupt's estate (in the hands of the assignees) as they 
 shall think fit, to be forthwith divided amongst such cre- 
 ditors as have proved debts under the commission, in pro- 
 portion to their respective (2) debts. One part of the order How order 
 
 for the dividend must be filed amongst the proceedinffs , ^ 
 
 . . ^ drawn up. 
 
 under the commission, and another part is to be delivered 
 
 to the assignees ; and it must contain an account of the 
 
 time and place where it is made, of the amount of the debts 
 
 (1) This section is taken chiefly (2) And see Lord Loughho- 
 from the 5 G. 2. c. 30. s. 35., the rough's General Order, 8th March 
 only difference being, that the com- 1 794. 
 missioners are directed to make the 
 dividend, instead of the assignees. 
 
 K K
 
 498 
 
 OF THE DIVIDEND. 
 
 [Ch. 12. 
 
 First divi- 
 dend. 
 
 Receipts 
 for di- 
 vidend. 
 
 Assignees' 
 accounts 
 to be first 
 audited. 
 
 Not com- 
 pellable 
 before 
 four 
 
 months to 
 make a 
 dividend. 
 
 How to 
 compel as- 
 signees to 
 make a 
 dividend. 
 
 proved, and of the money remaining in the hands of 
 the assignees to [be divided ; — as well as how much in 
 the pound is then ordered to be paid to every creditor, and 
 of the money allowed by the commissioners to be retained 
 by the assignees, with their reasons for allowing the same 
 to be so retained. The assignees are then forthwith to 
 make the dividend, and to take receipts (in a book to be 
 kept for that purpose) from each creditor for the dividend 
 received. The order of the commissioners, and the receipt 
 of the creditor, will be a discharge to every assignee, for so 
 much as he shall pay pursuant to such order. But no 
 dividend is to be declared, unless the accounts of the 
 assignees have been first audited (1) by the commissioners 
 in the manner directed by the 106th section; nor unless 
 the assignees shall deliver in a statement upon oath of all 
 money received by them, pursuant to the directions con- 
 tained in the same section. (2) 
 
 The assignees, therefore, cannot be compelled, and indeed 
 are now incompetent, to make a dividend of the bankrupt's 
 estate, hrfore the expiration oi four calendar months from 
 the commission. (3) But after that time, if they have suf- 
 ficient funds in their hands, it is their duty to apply to the 
 commissioners to appoint a meeting (4) to declare one; — 
 though the precise time (until the expiration of twelve 
 calendar months from the issuing of the, commission) must 
 rest with the assignees. (5) 
 
 If the assignees, after the expiration of four months, 
 refuse to make a dividend, they are bound to account 
 satisfactorily for such (6) refusal; and if they do not, any 
 creditor (who has proved a debt) may apply to the commis- 
 sioners to appoint a meeting, for the assignees to show 
 
 ( 1 ) This is taken from the -3 9 G. 5. 
 
 C. 131. s. 5. 
 
 (2) And see ante, page 327. 
 
 (3) Coopers. Pefys, 1 Atk. 106. 
 
 (4) The meeting to declare a 
 dividend (as well, indeed, as tdl 
 other public meetings under every 
 
 town commission) is now held at 
 the new Court of Commissioners 
 of Bankrupts in Basinghall-street. 
 
 (5) Treves v. Toivmejid, 1 Bro. 
 385. 
 
 (6) Ex parte Grosvenor, 14 Ves. 
 590.
 
 Sect. 1.] OF THE DIVIDEND. 499 
 
 cause why they refuse to make a dividend ( 1 ) ; and the First divi- 
 summons and the meeting may be had without any ex- ^ 
 pense to the creditor (2) ; as it is the practice of the com- 
 missioners in London to take no fees for such meetings. (3) 
 The meeting to shew cause is not advertised, but the as- 
 signees are merely privately summoned before the commis- 
 sioners. If the commissioners decline to appoint such 
 meeting, or the assignees refuse to obey the commissioners' 
 order to make a dividend, the Lord Chancellor will then, 
 upon petition, order the assignees to attend the commis- 
 sioners, and direct the latter to declare a dividend, if^ upon 
 examining the accounts and the assignees upon oath, they 
 find there is a sufficient fund. (4) 
 
 The Lord Chancellor may, in his discretion, postpone Lord 
 the dividend beyond the time limited by the statute ; but „„]f"" 
 he will not do so, unless fully satisfied that the postpone- postpone 
 
 ment will be lor the oeneral benefit of all the creditors, ., , 
 ^ videnu. 
 
 and that the parties applying for the postponement have a 
 right so to apply. Therefore, where a ])etition was presented 
 by creditors of surviving partners, that the dividend might 
 be postponed, until those (who were also creditors of the 
 deceased partner, and who had filed a bill against his re- 
 presentatives, for an account of his assets and payment of 
 their debts) should have gone in under the decree ; — the 
 Lord Chancellor dismissed the petition, on the ground, 
 that there was no equity, in the creditors of the surviving 
 partners, to make such an application. (5) 
 
 If the assignees neglect to make a dividend in proper Penalty 
 
 time, and wilfully retain or employ any monies of the ^" ^^fS- 
 11 J 1 e 1 f ^ • 1 "^^■'^ keep- 
 
 bankrupt s estate to the amount or 100/. tor their own be- ing money 
 
 nefit, they are chargeable with interest at the rate of !" **^^''' 
 
 20/. per cent, on all such money, for the time during which 
 
 it has been so retained or employed. (6) And they have 
 
 (1) And see General Order, 8th (4) Ex parte Whitchurch, \ Atk. 
 March 1794. 91. 
 
 (2) iC. B.L. 521. (5) Ex parte Kendall, \ Rose, 
 
 (3) Eden, 553. 71. 17 Ves. 514. 
 
 (6) Section 1 04. ; and see ante, 338 . 
 
 K K 2
 
 500 
 
 OF THE DIVIDEND. 
 
 [Ch. 12. 
 
 First divi- 
 dend. 
 
 Where a 
 claim en- 
 tered on 
 procecd- 
 inss. 
 
 Creditor 
 only en- 
 titled to 
 dividend 
 upon the 
 amount of 
 his real 
 debt. 
 
 When 
 dividend 
 may be 
 retained. 
 
 Must be 
 refunded 
 when debt 
 expunged. 
 
 Solicitor's 
 charge. 
 
 Whether 
 an assignee 
 
 been charged with common interest, though the money 
 has lain at a banker's, and they have not been paid interest 
 for it.(l) 
 
 Where a claim has been properly entered on the pro- 
 ceedings, the person making the claim is entitled to have a 
 dividend reserved upon it ; but such dividend must be re- 
 tained by the assignees, until ihe claim is duly substantiated 
 as a debt (2) ; and at u second or final dividend, the claim, 
 if not substantiated, should be struck out. (3) 
 
 If a creditor has been permitted to prove upon an in- 
 strument of larger amount than his real debt, he will not 
 be entitled to receive dividends to a greater amount, than 
 upon the real debt due to him. (4) And if the consider- 
 ation, of bills of exchange proved under the commis- 
 sion, is other bills given by the creditor to the bank- 
 rupt, the payment of the dividend must be stayed upon 
 his proof, until the extent of his real claim against the 
 bankrupt is ascertained (5) ; or the proof must be reduced 
 pro tanto, if he has already received part of his debt upon 
 any other security. 
 
 If a creditor has obtained an unfair possession of the 
 bankrupt's property, his share of the dividend may be re- 
 tained, until he gives up the property. (6) And as a cre- 
 ditor, by proving, has submitted himself to the jurisdiction 
 in bankruptcy, the Lord Chancellor, when he directs a 
 debt to be expunged, has power to order any dividend that 
 has been received under it to be refunded. (7) 
 
 The solicitor's charge for computing the dividends, and 
 preparing and copying a list of the debts, will be allowed 
 in the assignees' accounts. 
 
 It is somewhat doubtful, whether an assignee has a right 
 
 (1) Hilliard's case, 1 Ves. 89. 
 Treves v. Townsend, 1 Bro. 384. 
 
 (2) And see ante, page 307. 
 . (3) 1 Christ. B. L. 562. 
 
 (4) Ex parte King, 1 C. B. L. 1 56. 
 Ex parte Crossley, ibid. 157. Ex 
 parte Bloxam, 6 Ves. 449. 600. 
 
 (5) Ex parte Clanricarde, 1 C. 
 B.L. 160. 
 
 (6) Ex parte Smith, 3 Bro. 46. 
 
 (7) Ex parte Burn. Ex parte 
 Dcwdney, 2 Rose, 59. note.
 
 Sect. 1.] OF THE DIVIDEND. 501 
 
 to retain a dividend, as a set-ofF against a private debt due ^^rst divi- 
 
 to him from the creditor. There have been different de- ' 
 
 cisions upon this point. Lord Talbot permitted an as- can set off' 
 
 sienee to exercise this riffht of set-off(l); — but Lord a'''7^'|e"'* 
 " . t5 . against a 
 
 Hardwicke refused to do so, saying, that he would not debt due 
 
 allow the assignee (who was an officer of the commission) ^^ himself. 
 
 to stop a person's share in the dividends, on account of his 
 
 own private debt owing to him from that person ; for that 
 
 he had his remedy at law, and ought not to blend his own 
 
 private affairs with the commission, to which he was only 
 
 a trustee. (2) And in a recent case before Lord Eldon, 
 
 where one of two assignees claimed to set off a private 
 
 debt of his own against the dividend ; — upon a petition 
 
 that the assignees might be ordered to pay the dividend, 
 
 Lord Eldon would not allow the set-off, on the ground 
 
 that the dividend was due Jtvyn two assignees, and the debt 
 
 on\y AwQ to one ; — but he made no observations on the 
 
 previous decisions. (3) 
 
 Where a banker to the estate, being also a creditor of Where the 
 the bankrupt, becomes bankrupt himself, his estate is not banker to 
 entitled to any dividend on his debt proved under the becomes 
 commission, until the whole monies received by him, as bankrupt. 
 banker to the estate, have been (4) accounted for. 
 
 Neither an assignee, nor the solicitor under the commis- As topur- 
 sion, is permitted to purchase a dividend for his own be- 'i- f-*j"^ ? 
 nefit. (5) 
 
 The Lord Chancellor cannot, in a proceeding by bill, How order 
 reverse the order of the commissioners for a dividend, the ^^ '^jv'- 
 only course being by petition in bankruptcy. (6) reversed. 
 
 522. 
 315 
 
 (1) Ex parte Noekold, 1 C.B.L. (4) Ex parte Bebb, 19 Ves. 223. 
 12. (5) Ex parte James, 8 Ves. 350. 
 
 (2) Ex parte White, 1 Atk. 90. (6) Clarke v. Capron, 2 Ves. jun. 
 C3) Ex parte Bruce, Whitm.B.L, 668. 
 
 K K 3
 
 502 
 
 OF THE DIVIDEND. 
 
 [Ch. 12. 
 
 Section II. 
 
 \Vhen 
 meeting to 
 be ap- 
 pointed. 
 
 Second 
 dividend 
 to be final, 
 except 
 when. 
 
 Wlien 
 creditors 
 proving at 
 meeting 
 for second 
 dividend 
 may re- 
 ceive the 
 former. 
 
 Of the second and thejinal Dividend. 
 
 By section 109, if the bankrupt's estate shall not have 
 been wholly divided upon the first dividend, the commis- 
 sioners are directed, within eighteen calendar months after 
 the issuing of the commission, to appoint a public meeting 
 (of which twenty-one days' previous notice is also to be 
 given in the Gazette), to make a second dividend of the 
 bankrupt's estate, when likewise all creditors may prove 
 their debts, who have not previously proved them. The 
 commissioners are then, after auditing the accounts of the 
 assignees, (as directed by the lOQth section {\) ) to order 
 the balance in their hands to be forthwith divided amongst 
 such of the creditors as shall have proved their debts; and 
 such second dividend is directed to be final, unless any 
 action at law or suit in equity be depending, or any part 
 of the estate be standing out, or not sold or disposed of, 
 or unless some other estate or effects of the bankrupt shall 
 afterwards come to the assignees ; in which last cases they 
 are directed, as soon as may be, to convert such estate and 
 effects into money, and within two calendar months after 
 the same shall be so converted, to divide the same in 
 manner before mentioned. 
 
 When creditors prove their debts in the first instance at 
 the meeting for the second dividend, it must be upon the 
 terms of not disturbing the former dividend ; but it is in- 
 cumbent on them to explain why they have not sooner 
 proved, and if they can reasonably account for the delay, 
 they will then be admitted to a participation in the former 
 dividend, before the commissioners proceed to make a 
 second. (2) This indulgence was not formerly granted, it 
 
 (1) See ante, pa. 327. Ex parte Stiles, 1 Atk. 208. In re 
 
 (2) Ex parte Long, 2 Dro. 50. Wheeler, 1 Sch. & Lef. 242. 
 
 5
 
 Sect. 3.] OF THE DIVIDEND. .503 
 
 beinff considered, that creditors (who had not proved before Final divi- 
 a dividend) could only be paid future dividends pari passu " ' 
 vv^ith the rest of the creditors. The strict and regular 
 mode, of being admitted to receive former dividends is, by 
 petition to the Lord Chancellor (1); but it is the practice 
 for the commissioners, without an order, first to direct the 
 creditor to be paid the former dividend, and then to direct 
 a general distribution of the residue of the bankrupt's 
 effects. (2) When the assignees pay former dividends 
 to any creditors subsequently proving, without the order 
 of the Lord Chancellor, they must also pay them to every 
 other creditor in the same situation. (3) 
 
 Section III. 
 
 Of unclaimed Dividends. 
 
 By seciion 110. it is provided, that an account of all Assignees 
 unclaimed dividends to the amount of 50/. remaining in ^^ account 
 the hands, or in the order and disposition of the assignees, of them at 
 shall be filed in the bankrupt office within six months after runt office- 
 the act shall have taken effect, or within two calendar 
 months after the expiration of one year from ihe declar- 
 ation and order of payment of such dividends. The ac- 
 count must contain the names of the creditors, to whom 
 such unclaimed dividends are due respectively, as well as 
 the amount of such dividends ; and it must be signed by 
 the assignees, arid attested either by the solicitor to the 
 commission, or the solicitor to the assignees. In default of or liable to 
 the assignees rendering such account, they are chargeable * P^° ^* 
 with 5 per cent, interest upon such unclaimed dividends, 
 to be computed from the time that the account is directed 
 to be filed, for so long as such dividends shall be retained, 
 
 (1) Ex parte Long, 2 Bro. 50. (3) Ex parte Long, 2 Bro. 50. 
 
 (2) iC.B.L. 521. 
 
 K K 4
 
 504 
 
 OF THE DIVIDEND. 
 
 [Ch. 12. 
 
 Unclaimed 
 dividends. 
 
 How to be 
 invested. 
 
 When 
 proof of 
 creditor 
 void pro 
 tanlo. 
 
 and with such further sum, not exceeding in the whole 20/. 
 per cent, per annum, as the commissioners shall think fit. 
 The Lord Chancellor, or the commissioners, may order the 
 investment of any unclaimed dividends in the public funds, 
 or any government security, for and on account of the 
 creditors entitled, and subject to the order of the Lord 
 Chancellor, who, if he shall think fit, may (after the same 
 shall have remained unclaimed for the space of three years 
 from the declaration of such dividends by the commis- 
 sioners) order the same to be divided amongst the other 
 creditors ; and the proof of the creditors, to whom such di- 
 vidends were allotted, will from thenceforth be considered 
 as void pro ianto; renewable, however, as to any future 
 dividends, so as to place them pari passu with the other 
 creditors — but not to disturb any dividends which shall 
 have been previously made. 
 
 Section IV. 
 
 Hois) a Dividend is to be recovered. 
 
 The creditor might formerly, after a dividend was de- 
 clared by the commissioners, either bring an action of 
 assumpsit against the assignees for the recovery of it ( 1 ) ; 
 or petition the Lord Chancellor for an order on them to 
 pay it. (2) But, as assignees were frequently put to con- 
 siderable expense and inconvenience in applying to the 
 Lord Chancellor to stop proceedings at law, when there was 
 an equitable defence to the claim of the creditor for the divi- 
 dend, it was considered by Lord Eldon (3) (before indeed 
 the passing of the I'ecent statute), that there would be great 
 convenience, in the creditor being confined to the exclusive 
 jurisdiction of the Lord Chancellor; because then the legal 
 
 (I) Broivnv.Bidlen,T>o\.\g.392. (2) Ex parte White, 1 Atk. 90. 
 Gillies V. Smith, 1 C. B. L. 521. Bishop v. Church, 3 Atk. 691. 
 
 (5) 1 Rose, 45S.
 
 Sect. 4.] OF THE DIVIDEND. 505 
 
 demand, and the equitable opposition, would be considered How re- 
 
 and disposed of together. It is, therefore, now provided ' 
 
 by the \\\th section of the new act, that no action for a 
 
 dividend shall be brought against the assignees ; but if they Dividend 
 
 refuse to pay any dividend, the Lord Chancellor may, upon ^"^ ^^7, 
 r J J ■> . coverablc 
 
 petition, order payment thereof with interest for the time by i^eti- 
 
 that it has been withheld, together with the costs of the ^^''"' 
 
 application. 
 
 This clause, however, does not enable the assignees to The order 
 
 resist the payment of a dividend upon a debt duly proved ^ | '"r 
 
 under the commission, any more than they could formerly ficient to 
 
 in an action at law ; therefore, if there is any objection to establish 
 7 7 7 1 • I ... , , . , the peti- 
 
 the debt^ upon which a petition is presented to be paid a tioner's 
 
 dividend, the assignees should previously present another '^ase. 
 petition to the Chancellor to expunge or reduce the debt(l),' 
 or, at any rate, apply to the commissioners to do so (under 
 the power given to them by the new act) (2) previous to the 
 hearing of the petition of the creditor. For, upon any 
 petition to pay dividends upon a debt proved, the order of 
 dividend will be received as in itself establishing the pe- 
 titioner's case ; nor is it indeed a complete answer to the 
 application, that a petition has been even presented by the 
 assignees for the purpose of expunging the proof, and is in 
 the Lord Chancellor's paper (3); though, if the assignees 
 have really any equity to resist the payment of the dividend, 
 the Lord Chancellor will in such a case either delay the 
 order for the payment of the dividend (4) ; or if he makes 
 the order, he will reserve the question of costs until the 
 hearing of the petition by the assignees. (5) 
 
 The assignees are not justified in delaying the payment When 
 of dividends, on the ground that notice has been given onlj delay 
 
 them by a third person of a claim upon the dividends, if ment jus- 
 tified. 
 
 (1) Ex parte Whiteside, 1 Rose, 162. Ex parte Atkinson, 3 Ves. & 
 519. Ex parte Loxley, Buck, 456. B. 14. 
 
 Ex parte Atkinson, 3 V. & B. 13. (4) Ex parte Hodges, Buck, 524. 
 
 (2) Vide Section 60. ante, 146. (5) Ex parte Whitwell. Ex parte 
 (5) Ex parte Whitwell, 2 Rose, Atkinson, supra.
 
 506 OF THE DIVIDEND. [Ch. 12. 
 
 How re- no petition has been presented by such claimant within a 
 
 * reasonable period after such notice. ( 1 ) 
 
 When ere- A creditor is not entitled to interest upon his dividend 
 
 tied to ' "'^dsr the above section of the act, unless he has actually 
 
 interest on applied to the assignees for the payment of it, and they 
 
 m end. ^^^^ refused, or omitted, to pay it. (2) 
 
 (1) Ex parte Alsopp, l Mad. 603. (2) Wackerbath v. Powell, Buck, 
 
 508.
 
 507 
 
 CHAP. XIII. 
 
 OF THE BANKRUPT. 
 
 Sect. 1. Of the Duties of the Bankrupt^ and herein of his 
 Surre7ider. 
 
 2. Of the Examination of the Bankrupt. 
 
 3. Of the Banknipfs Answers. 
 
 4. Of committing the Ban/erupt, and of the Remedies 
 
 for his Discharge. 
 
 5. Of the Bankrupt's Rig/its and Privileges : 
 
 1 . Of his Privilege from Arrest. 
 
 2. Of his Maintenance during his Exa- 
 
 miiiation. 
 
 3. Of his Allowance under the Commission. 
 
 4. Of his Right to the Surplus. 
 
 5. As to his Right to acquire Property he- 
 
 fore obtaining his Certificate. 
 
 6. Of Actions at Law hy and against an uncertifi- 
 
 cated Bankrupt. 
 
 7. Of Suits in Equity. 
 
 Section I. 
 Of the Duties of the Bankrupt, and herein of his Surrender. 
 
 After a party is declared a bankrupt, the first duty re- Penalty 
 
 quired of him is, to surrender himself to the commissioners, ^"currecl 
 
 .fr 1 1 1 • "y ^ bank- 
 
 For, by section 112. of the new act, if after such declaration rupt not 
 
 he shall not, before three o'clock ( 1 ) upon the forty-second surrender- 
 day (after notice thereof in writing left at his usual place of 
 
 (l) The act does not specify whether A.M., or P.M.
 
 508 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Surrender. 
 
 Bankrupt, 
 when in 
 prison, 
 may be 
 brought 
 before the 
 commis- 
 sioners. 
 
 Lord 
 Chan- 
 cellor may 
 enlarge 
 the time 
 for the 
 bankrupt's 
 surrender. 
 
 abode, or personal notice, in case he be then in prison, and 
 after notice also given in the London Gazette of the issuing 
 of the commission, and of the meetings of the commis- 
 sioners) surrender himself to them, and sign or subscribe 
 such surrender, and submit to be examined before them 
 from time to time upon oath, (or, being a Quaker, upon 
 solemn affirmation) — he is liable to be convicted of felony, 
 and maybe transported for life(l), or for a term not less 
 than seven years ; or he may be imprisoned and kept to 
 hard labour, for any term not exceeding seven years. 
 
 If the bankrupt is in prison under any process or 
 sentence, and is desirous to surrender, the new statute 
 provides (2), that he may be brought before the commis- 
 sioners (by their warrant directed to the gaoler) at the ex- 
 pense of the estate. (3) And, where a bankrupt in prison 
 for debt is entitled to be carried before the commissioners 
 to enable them to take his surrender, an order will be made 
 for his doing so, notwithstanding he may upon a summary 
 application obtain his discharge. (4) 
 
 By sectio7i 113. of the new act, the Lord Chancellor may 
 enlarge the time for the bankrupt's surrender for such 
 period, and as often as he shall think fit (5), so as the order 
 for such enlargement be made six days at least before the 
 day, on which the bankrupt ought to have surrendered. (6) 
 The application for this purpose is made by presenting a short 
 petition to the Lord Chancellor, and the order is drawn 
 up at the bankrupt office, without mentioning it in court. 
 
 (1) The punishment of death, 
 which was inflicted by the former 
 statutes (4 & 5 Ann. 5G.1. 5G.2, 
 c. 50. s. 1.) for not surrendering to 
 a commission, was abolished by 
 the 1 G. 4. c. 115., and that of 
 transportation substituted. 
 
 (2) Section 119. 
 
 (3) And see Spence v. Jones, 
 5 B. & A. 705. Before the 49 G. 5. 
 c. 121., if the bankrupt was in ex- 
 ecution, the commissioners had no 
 
 authority to order him to be 
 brought before them, but were 
 obliged to take his surrender in 
 prison. 
 
 (4) Ex parte Emery, Buck, 527. 
 
 (5) Under the 5 G. 2. c. 30. s.3. 
 the Lord Chancellor could only 
 enlarge the time for fifty days, and 
 there could only be one such en- 
 largement. 
 
 (6) And sec ex parte Du Freme, 
 1 Rose, 311.
 
 Sect. 1.] OF THE BANKRUPT. 509 
 
 The assignees, however, ouglit not to apply for such an Surrender. 
 order, if the bankrupt is ready and willing to surrender. (1) 
 
 The bankrujjt may surrender, if he chooses, at a private Bankrupt 
 meeting of the commissioners at any time before the forty- "cmler '^' 
 second day; and it is his interest as well as his duty to before the 
 surrender as early as possible ; for, by doing so, he will be ^^' 
 
 entitled to protection from arrest until he has passed his 
 last examination. (2) But, though the bankrupt choose 
 not to surrender until the very last minute of his time, the 
 commissioners have, nevertheless, authority to summon 
 and examine him in the intermediate period, touching his 
 estate and effects. (3) 
 
 If the bankrupt does not surrender himself within the Consc- 
 
 limited time, namely, before three o'clock on the forty- ^"^"S^^^^ 
 '' , . •' omission to 
 
 second day, and has obtained no order for his surrender surrender. 
 being enlarged, he is warned to surrender by the mes- 
 senger in the usual form of proclamation. But the omission Must be 
 to surrender must be ivilful, in order to render it a felony (4); wilful to 
 for an involuntary neglect in this respect will not subject a felony. 
 him to the penalty inflicted by the statute. Therefore, 
 where the bankrupt makes an attempt to surrender, and is 
 not able to do so, by the commissioners neglecting to 
 attend (5) — or if he is prevented from surrendering by 
 illness (6), — the omission to do so, not being intentional, 
 does not of course become a felony. And the same, where 
 the bankrupt went abroad to recover a debt due to his 
 estate, and took his passage for his return in the only ship 
 bound for England, which did not arrive in time. (7) When \Vhen 
 the bankrupt is prevented from surrendering by any acci- q\^^^_ 
 dent of this kind, the Lord Chancellor will (upon his ap- cellor will 
 plication, or that of the assignees, accompanied by an p^'' ^^ ^ 
 
 (1) Ex parte Dayrie, 1 G. & J. (4) Ex parte Rogers, A.m\A. 301 . 
 281. Ex parte Sherman, cit. ibid. 
 
 (2) Ex parte Wood, 1 Rose, 46. (5) Ex parte Grey, 1 Ves. jun. 
 18 Ves. 1. Rex v. Fcrrott, 2 Burr. 195. 
 
 1124. (6) Ex parte Bould, 2 Bro. 49. 
 
 (3) Section 36. ; and see ante, Ex parte Ricketts, 6 Ves, 445. 
 page 148. (7) Ex parte Higginson, 12 Ves. 
 
 496.
 
 510 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Surrender, 
 
 meeting to 
 take the 
 surrender. 
 
 In some 
 cases the 
 commis- 
 sion will 
 be super- 
 seded to 
 prevent a 
 prosecu- 
 tion. 
 
 affidavit of the bankrupt) order the commissioners to ap- 
 point a fresh meeting to take his surrender, (l) And 
 where a bankrupt had been erroneously advised by his 
 soHcitor, that the commission could not be sustained, 
 and that his surrender was therefore unnecessary — and 
 had, in reliance on that opinion, omitted to surrender, — 
 a similar order was obtained (2) ; and the same, where 
 his omission to surrender arose from an apprehension 
 of a prosecution. (3) In another case of this description, 
 where a subsequent joint commission was issued, Lord 
 Eldon superseded the first commission (4) ; and Lord Mac- 
 clesfield, too, in more instances than one — where there 
 did not appear to be any intention in the bankrupt of de- 
 frauding his creditors by not surrendering within the time, 
 and where his absence proceeded from an ignorance of the 
 consequences, or from accident — superseded the com- 
 mission, in order to prevent a prosecution. (5) But this 
 will not be done, where no circumstances of extenuation 
 appear (6); and in all cases of this nature, the bankrupt 
 pays the costs of the application. (7) If, however, the 
 omission to surrender has not proceeded from ignorance 
 of the consequences, but has been purely wilful on the part 
 of the bankrupt, the Loi*d Chancellor will not then interfere 
 by making any order (8) ; and Lord Thurlow even refused 
 to make one, where the bankrupt stayed abroad at the 
 desire of the assignees to get in his effects. (9) Where 
 the Lord Chancellor, by thus superseding the commission, 
 exerts his authority to impede the ordinary course of law, — 
 the same facts, which are sufficient to induce him to do so, 
 will also, as it should seem, be a good defence to an indict- 
 ment against the bankrupt for the felony. (10) 
 
 (1) See the four last cases. 
 
 (2) Ex parte Shiles, 2 Rose, 381. 
 
 (3) Ex parte Berryman, 1 G.& J. 
 IS. 
 
 (4) Ex parte Lavender, 1 Rose, 
 55. 18 Ves. 18. 
 
 (5) Ex parte Wood, 1 Atk. 222. 
 
 223. 
 
 (6) Ex parte Roberts, 2 Rose, 
 578. 
 
 (7) Ex parte Carter, 4 Madd. 
 394. 
 
 (8) Ex parte Smith, 1 C B. L. 
 434. and the preceding cases. 
 
 (9) Ex parte Daiuson, 2 Cox, 48. 
 
 (10) IC.B.L. 436.
 
 Sect. 1.] OF THE BANKRUPT. 511 
 
 In all these cases, where the Chancellor makes an order for Surrender. 
 a fresh meeting to take the bankrupt's surrender, though the How Lord 
 order will not absolutely protect the bankrupt from a prose- Chancel- 
 cution, yet it will be considered as a declaration of the Lord .°V °^ ^^ 
 Chancellor's opinion, that the bankrupt had no intention of strucd. 
 keeping out of the vmy frcmdulcntlT/ ,- for otherwise it would 
 not (of course) have been granted. ( 1 ) Where the bankrupt 
 was prosecuted by a person, who was not a creditor, for 
 not surrendering, and the circumstances of the case were in 
 his favour, Lord Hardwicke refused to aid the prosecution, 
 by ordering the clerk of the commission to attend at the 
 Old Bailey with the proceedings under the commission; 
 and said, he would leave the prosecution to go on in such 
 manner, as the law prescribed, to prove him a bankrupt 
 and a felon, within the intent and meaning of the statute 
 on which the prosecution was grounded. (2) 
 
 A petition for an order, to enlarge the time for a bank- Petition to 
 
 rupt's surrender, must always be supported by an affidavit ^"'^''8^ 
 
 of the bankrupt himself. In only one instance, it is said, must be 
 
 has this rule been dispensed with ; and that was, where the f^l'ported 
 11 • 1 1 . . , t>y an affi- 
 
 bankrupt was commg to surrender to the commission, but davit of 
 
 was taken and detained as a prisoner by the French, and *'^^ bank- 
 consequently could not make an affidavit. (3) The consent 
 of the assignees is not necessary previous to the bankrupt 
 applying for the order ; which, in fact, has been made upon 
 one occasion, where the bankrupt's express object in sur- 
 rendering was, that he might be enabled to petition to 
 supersede the commission. (4) 
 
 Before the bankrupt has surrendered to his commission, Bankrupt 
 it is a strict rule (5), that he cannot be heard upon petition ; "'"** ^^" 
 
 (1) Ex parte Jb/»wore, 14 Ves. 40. (5) This rule, however conve- 
 Ex parte Jackson, 5 Ves. 119. Ex nient it may be in point of prac- 
 parte White, 2 Bro. 47. Ex parte tice, it is impossible to deny, 
 Ricketts, 6 Ves. 445. Ex parte must in some cases appear in- 
 Shiles, 2 Rose, 381. consistent and unreasonable ; — for 
 
 (2) Ex parte Wood, 1 Atk. 222. it compels a party to submit, in a 
 
 (3) Fuller''?, case, 10 Ves. 183. certain degree,to the very authority, 
 
 (4) Ex parte Shiles, 1 Mad. 248. which he contends to be invalid — 
 2 Rose, 381. and the validity of which (without
 
 512 
 
 OF THE BANKRUPT. 
 
 [Ch.l3. 
 
 Surrender. 
 
 before he 
 can be 
 heard on 
 petition. 
 
 Other 
 duties. 
 
 Bankrupt 
 must de- 
 liver up his 
 books and 
 papers, 
 
 and attend 
 his assig- 
 nees to 
 make out 
 his ac- 
 counts, 
 &c. : 
 
 and his representatives, in case of his death before surrender, 
 are not in a better situation — unless, indeed, their petition 
 makes out a case, that would induce the Court to permit a 
 surrender if the bankrupt were living. (1) Therefore, 
 where a bankrupt died abroad without having surrendered — 
 and his personal representative petitioned, that the assignees 
 might account for the surplus of his estate, as all other 
 creditors had been paid 205. in the pound ; — the Vice- 
 Chancellor dismissed the petition, saying, that if the pe- 
 titioner had any equity, he must apply to the Court by 
 bill. (2) 
 
 Besides the first and more important duties of the bank- 
 rupt — in surrendering himself to the commissioners, and 
 making a full disclosure and discovery of his estate and 
 effects — there are other specific duties imposed upon him 
 by law during the working of the commission, to enable his 
 assignees to collect his effects, and divide them amongst his 
 creditors. 
 
 Thus, by section 116. of the new statute, the bankrupt 
 (if thereunto required) must deliver up to the assignees upon 
 oath all his books of account, papers, and writings relating 
 to his estate, and discover such as are in the custody or 
 power of any other person : and he must at all times, if 
 not in prison or custody, attend his assignees upon every 
 reasonable notice in writing given to him, and assist them 
 in making out the accounts of his estate : and, even after 
 he has obtained his certificate, he is required, upon demand 
 in writing, to attend his assignees to settle any accounts 
 relating to his estate, as well as any court of record, to give 
 
 any such previous surrender) it is 
 competent for him to contest, 
 either in a civil action, or a cri- 
 minal prosecution. Sir W. Evans 
 thinks, that the surrender should 
 be dispensed with, whenever the 
 opposition of the bankrupt to the 
 commission appears to arise from 
 a fair and real objection to its 
 validity, and not from any vex- 
 
 atious or improper motive ; (see 
 Letter to Romilly, page 201.) an 
 arrangement which, it is submit- 
 ted, would be not a very inequi- 
 table relaxation of the above in- 
 exorable rule. 
 
 (1) Ex parte Crowther, Buck, 
 480. 
 
 (2) Ex parte Gardiner, Buck, 
 458.
 
 Sect. 2.] 
 
 OF THE BANKRUPT. 
 
 513 
 
 evidence touching the same, and also to do any act neces- 
 sary for getting in his estate ; for which attendance Jie is 
 entitled to five shiiHngs (1) per day from the assignees out 
 of his estate. And if he shall not attend, or on attendance 
 refuse to do any of sucii matters, (without sufficient excuse 
 shewn to the commissioners for such refusal) the commis- 
 sioners may, on the complaint of the assignees upon oath, 
 cause the bankrupt to be apprehended on their warrant, and 
 committed to prison until he shall conform to the satis- 
 faction of the commissioners, or of the Lord Chancellor. 
 
 And at all times, till the bankrupt's affairs are finished, 
 it is his duty, when required, to attend the commissioners, 
 (whether before, or after he has obtained his certificate) to 
 answer any questions which may be demanded of him re- 
 lating to his estate or effects. (2) 
 
 Duiicj. 
 
 allowance 
 for his at- 
 tendance. 
 
 In case of 
 default, 
 may be im- 
 prisoned. 
 
 Duty at all 
 times to 
 attend the 
 commis- 
 sioners. 
 
 Section II. 
 Of the Examination of the Banlcrupt. 
 
 The bankrupt, as we have already seen (3), by the 
 With section of the act is required to submit to be ex- 
 amined before the commissioners from time to time upon 
 oath ; and if upon such examination he shall not discover 
 all his real or personal estate, and how, and to whom, 
 upon what consideration, and when, he disposed of, as- 
 signed, or transferred, any of such estate, and all books, 
 papers, and writings relating thereunto, (except such part as 
 shall have been really and bond fide before sold, or dis- 
 posed of, in the way of his trade (4), — or laid out in the 
 
 (1) This allowance was before 
 only 2^. erf. 
 
 (2) Section 36. Norris v. Levy, 
 2 Blac. 1188. 
 
 ^ (5) Ante, 507. and see Section 56. 
 
 (4) This exception is copied 
 
 from the 5 G. 2. c. 30. s. 1.; — and 
 
 Mr. CuUen, in his able treatise on 
 
 the former bankrupt laws, very 
 
 L 
 
 judiciously remarks, that there 
 seems to be some inaccuracy with 
 respect to the first part of the ex- 
 ception, if considered (as it is ex- 
 pressed in the statute) to be an 
 exception merely as to discovert/. 
 The meaning, he says, of the latter 
 part of the exception is obvious, 
 viz. that a general account of the 
 
 Bankrupt 
 required 
 to dis- 
 cover all 
 his estate 
 and effects.
 
 514 
 
 or THE BANKRUPT. 
 
 [Ch. 13. 
 
 Of the ex- 
 amination. 
 
 Penalty in 
 case of 
 conceal- 
 ment, or 
 embezzle- 
 ment. 
 
 As to re- 
 fusal to 
 answer 
 questions. 
 
 Commis- 
 sioners 
 may ex- 
 amine 
 bankrupt 
 on oath, 
 
 ordinary expense of his family) — or if he shall not, upon 
 such examination, deliver up to the commissioners all such 
 part of his estate, and all books, papers, and writings re- 
 lating thereto, as are in his possession, custody, or power, 
 (except the necessary wearing apparel of himself, his wife, 
 and children) — or if he shall remove, conceal, or em- 
 bezzle any part of his estate, to the value of lOZ. or up- 
 wards, or any books of account, papers, or writings re- 
 lating thereto, with intent to defraud his creditors, — every 
 such bankrupt " in case of any default or mlful omis- 
 sion" (l) in any of these particulars, will be deemed guilty 
 of felony, and liable to be transported, or imprisoned, for 
 the same term (2), as in the case of his not surrendering to 
 the commission. 
 
 When the bankrupt had surrendered to his commission, 
 it was decided, before the new act, that the mere refusal to 
 answer certain questions, would not render him liable to be 
 convicted of felony, notwithstanding such refusal proceeded 
 from an intent to defraud his creditors. (3) But now, if 
 those questions were connected with the discovery of his 
 estate and effects, his refusal to answer them would, it 
 should seem, be evidence of his intent to defraud his cre- 
 ditors, by retaining, concealing, or embezzling his property, 
 within the meaning of the above section. 
 
 The commissioners may also (as we have already seen (4) ) 
 by the 36th section of the new act, at any time, either be- 
 fore, or after, the bankrupt has obtained his certificate (5), 
 
 gross sums laid out in family ex- 
 penses is sufUcient, without its 
 being necessary to go into the 
 particular items. But to dis- 
 pense with the discovery of such 
 part of his estate and effects, as 
 shall have been sold in the way of 
 trade, seems unintelligible in itself, 
 and inconsistent with the other 
 parts of the clause. The excep- 
 tion was found for the first time in 
 the 5 G. 2., which, he thinks, is not 
 the only instance of a variation 
 without improvement from the 
 
 former statute of the 5 G. 1. See 
 Cull. Princ. B. L. 34,5. 
 
 (1) The learned framer of the 
 new act says, that these words 
 should have been inserted, but 
 have been, by some mistake, omit- 
 ted, in the printing of the statute. 
 Eden, B. L. 560. n, (d). 
 
 (2) The punishment was death 
 under the 5 G. 2. c. 30. 
 
 (3) Rex V. Page, 1 B. & B. 308. 
 3 Moore, 656. 7 Price, 616. 
 
 (4) Ante, page 149. 
 
 (5) See 14 Ves. 449. Ex parte 
 Bradleu, 1 Rose, 202.
 
 Sect. 2.] OF THE BANKRUPT. 515 
 
 examine him upon oath, either by word of mouth, or on Ofthcex- 
 
 interrogatories in writing, touching all matters relating to ' 
 
 his trade, dealing, or estate, or which may tend to disclose 
 any secret grant, conveyance, or concealment of his estate 
 or effects, and to reduce his answers into writing, which 
 the bankrupt is required to sign. And if he shall refuse and im- 
 to answer any such questions of the commissioners, or not it"he ^^1"^ 
 fully answer to their satisfaction, or shall refuse to sign his not fully 
 examination, the commissioners may then commit him by '^"''^^'' 
 their warrant to prison without bail, until he shall submit 
 himself to their authority. 
 
 By sectio7i 118. the commissioners may now, at the time Commis- 
 appointed for the last examination of the bankrupt, or any ^ ^^_ 
 enlargement or adjournment thereof, adjourn such examin- journ the 
 ation sine die ,• in which case the bankrupt will be free from f^.^"^^"' 
 arrest or imprisonment for such time (not exceeding three 
 calendar months) as they shall, by indorsement upon the 
 summons, appoint. (1) It is irregular in the assignees to 
 get an ex parte order to enlarge the time for the bankrupt's 
 last examination (2); but it seems that in one case such an 
 order was made — the assignees consenting — though the 
 bankrupt had absconded after surrendering to the commis- 
 sion. (3) 
 
 The better to enable the bankrupt tc finish his examin- Bankrupt 
 ation, he may (by section 116.) at all seasonable times after "pe^t^hL 
 he has surrendered, and before the expiration of the forty- books, &c. 
 two days from the issuing of the commission, or before the 
 expiration of such further time as shall be allowed him to 
 finish his examination, inspect his books, papers, and wri- 
 
 (1) And see Rex v. Perrott, the section (which relates to the 
 2 Burr. 1122. Davis v. Trotter, surrender, the signing such sur- 
 8 T.R, 475. Ex parte Hawkins, render, and submitting to be ex- 
 4 Ves. 691. amined) being entirely copulative, 
 
 (2) Ex parte Dayrie, 1 G. & J. and constituting one entire duty, 
 281. the whole of which, according to 
 
 (3) Ex parte Paor, 1 Mont. Dig. the principle of Rex v. Page, ante, 
 113. Quaere, whether (under the 514. must be omitted, in order to 
 words of the 112th section) a bank- render him liable to a conviction 
 rupt could in such a case be con- for felony. 
 
 victed of felony, the first part of 
 
 L L 2
 
 516 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Of the ex- 
 amination. 
 
 Bankrupt 
 must de- 
 liver in a 
 statement 
 of his ac- 
 counts. 
 
 Bound to 
 answer all 
 questions 
 of commis- 
 sioners. 
 
 tings in the presence of his assignees, or any person ap- 
 pointed by them, and bring with him, each time, any two 
 persons to assist him. And the assignees cannot refuse 
 the bankrupt such an inspection of his books, whatever his 
 object may be ; for neither they, nor (as it seems) even the 
 Lord Chancellor, have any discretion either to permit or 
 refuse such inspection. (1 ) 
 
 If the bankrupt is in prison, he may, as lias been already 
 stated (2), be brought before the commissioners to be ex- 
 amined ; and the assignees may appoint any persons to 
 attend him from time to time, and to produce to him his 
 books, papers, and writings in order to prepare an abstract 
 of his accounts, and a statement to shew the particulars of 
 his estate and effects previpus to his final examination and 
 discovery thereof, a copy of which the bankrupt is required 
 to deliver to the assignees ten days, at least, before his last 
 examination. 
 
 Where the bankrupt's books were in the office of a 
 Master of the Court of Chancery in Ireland, and the 
 assignees required the production of them, the expense of 
 procuring them was ordered to be paid out of the estate. (3) 
 
 The bankrupt is bound to answer all the questions of 
 the commissioners relating to his property ; and the whole 
 of his conduct and behaviour in his dealings with it is sub- 
 ject to the strictest inquiry ; for it is the duty of the com- 
 missioners to take care of the interests of all parties, and 
 to examine the bankrupt fully, as to every matter connected 
 with the disposal of his estate or effects. (4) And it seems 
 to be contemplated by the legislature, that the bankrupt 
 shall furnish to the commissioners at his last examination 
 some "iSorittcn disclosure or discovery of his estate and effects; 
 the uniform practice has been, certainly, conformable to 
 this construction, — it being usual for the bankrupt to give 
 
 (1) Ex parte Ross, 1 Rose, 53. 
 17 Ves. 374. 
 
 (2) Ante, page 508. j and see 
 Section 119. 
 
 (3) Ex parte Cridland, 2 Rose, 
 164. 5 Ves. &B. 94. 
 
 (4) Nerot V. Wallace, 3 T. R. 17. 
 Janson v. IVUsoh, Doug. 257. Tai/~ 
 lo7-*s case, 8 Ves. 33 1 .
 
 Sect. 2.] OF THE BANKRUPT. 517 
 
 in then some account in writing to the commissioners. Of the ex- 
 This account should specify what debts are due //w« him, " 
 
 and what effects he then possesses, in addition to debts 
 which are due to him, — what he has expended, — what his 
 capital was, — and how that has been laid out, so as to 
 account for the reason of his becoming a bankrupt. (1) 
 The Lord Chancellor has, however, the power in his dis- As to 
 cretion to limit the examination of the commissioners to ^"""^V^ 
 particular points, though such a power does not appear to Chan- 
 have been exercised in the examination of the bankrupt : f.^".""* ^^ 
 nor, mdeed, does there seem any great necessity tor the m- amination. 
 terposition of the Chancellor's authority in this respect. For 
 if the bankrupt objects to any question, he may demur to the 
 interrogatories, and the Lord Chancellor will then judge 
 of the question upon a petition. (2) And, if the commis- 
 sioners are dissatisfied with any of the bankrupt's answers, 
 and commit him in consequence, the Lord Chancellor, or 
 any other of the superior tribunals, can in that case, upon 
 habeas corjnis^ decide both upon the propriety of the ques- 
 tion and the answer. Lord Hardwicke, hi one case (3), 
 made an order for limiting the examination of a person 
 summoned before them (who was the mother of the bank- 
 rupt) to the point of the bankrupt's trading ; but, in an- 
 other case, he refused to i-estrain the commissioners from 
 asking certain questions of a person so summoned. (4) 
 
 The examination of the bankrupt is not to be restrained. As to com- 
 because his answers may subject him to certain penalties, ans^g^.^" 
 which he has incurred by his conduct in particular trans- from bank- 
 actions (5); and it has been said that he cannot refuse to an- '^//jjj^ 
 swer the inquiries of the commissioners, although his answers would cri- 
 may tend to shew that he has committed a criminal act. (e) hiJ^^^gff 
 But he cannot, certainly, object to answer a question, because 
 
 (1) Per Abbott C.J. Davie v. (4) Ex parte Bland, 1 Atk. 205. 
 Mitford, ^B.Sck. 365. (5) Ex parte Meymot, supra. 
 
 (2) Ex parte Meymot, 1 Atk. Ex parte jBarr, 1 C. B. L. 437. 
 199. (6) Ex parte Cossens, Buck, 53 1. 
 
 (3) Ex parte Parsons, 1 Atk. 
 204. 
 
 I, I, S
 
 518 
 
 OF THE BANKKUPT. 
 
 [Ch. 13. 
 
 Of the ex- 
 amination. 
 
 Assignees 
 have no 
 power to 
 stop the 
 examina- 
 tion as to 
 certain 
 points. 
 
 the answer would tend to establish an act of bankruptcy. (1) 
 Nor can he refuse to answer the inquiries of the commis- 
 sioners, on the ground that the creditors can derive no 
 benefit from the examination (2), or that he intends to dis- 
 pute the commission. (3) But, if the question put to him 
 be, whether or not he has done an act clearly of a criminal 
 nature, he may refuse to answer it. Therefore, where a 
 petition prayed, that the creditors might be at liberty to 
 examine the bankrupt, whether he, or any person in trust 
 for him, or for his benefit, had received, or were to receive, 
 any sum of money, or other valuable consideration, for his 
 having resigned, or as an inducement to resign, the office 
 of town-clerk of the city of Bristol, — the petition was 
 dismissed. (4) 
 
 The assignees, too, have no power by an agreement with 
 the bankrupt, or any other person, (though made with the 
 consent of all the creditors) to stop the commissioners from 
 examining the bankrupt as to certain points ; — for the 
 public, as well as the creditors, have a right to know how 
 the bankrupt has disposed of his property. The creditors 
 are only interested, as far as respects the payment of their 
 debts ; but the public are interested in knowing, whether 
 the bankrupt ought to be restored to his former credit by 
 obtaining his certificate. Therefore, where an agreement 
 was made by a friend of the bankrupt, to pay a sum of 
 money to the assignees, in consideration that they would 
 forbear to proceed in the examination then about to be 
 taken before the commissioners, with respect to certain sums 
 of money, for which the bankrupt had not accounted — 
 and that the commissioners would forbear and desist from 
 taking his examination to these points, — such agreement 
 was held void, as being contrary to the object and policy 
 of the bankrupt law. (5) 
 
 (1) Pratt's case, l G.&J. 58. 
 
 (2) Ex parte Nowlan, 11 Ves. 
 516. 
 
 (3) Davie v. Mitford, 4 B. & A. 
 366. 
 
 (5) Nerot V Wallace's T. R. 17., 
 But an agreement, by a friend of 
 the bankrupt, to pay all the cre- 
 ditors their full debts, in consider-
 
 Sect. 3.] OF THE BANKRUPT. 519 
 
 Section III. 
 Of the Bankrupt's Answers. 
 
 The bankrupt being, as has been already stated (1), When 
 bound to answer fulli/ any questions put to him by the ^j^^^j^"/ 
 commissioners, touching any matter to which he may be full and 
 lawfully examined, — when he is required, therefore, to parti<^ular 
 account for the disposal and application of large sums of general an- 
 money, and questions are put to him, which call for, and swerswill 
 will admit of, full and particular answers, general answers sufficient, 
 will not be sufficient. For the better illustration of what 
 is, and what is not, an insufficient answer in this respect, * 
 two or three cases will be given at somewhat greater length, 
 than the scope of this work has in general admitted of: — 
 
 John Perrot upon his examination had the following Perrofs 
 question put to him : " As you admit, that you have spent ^^^^' 
 
 * the last week previous to your examination with Mr. 
 
 * Maynard (one of your assignees) to settle and adjust 
 ' your accounts, and to draw up a state thereof, to enable 
 ' you to close such your examination; and do likewise admit, 
 ' that upon such state thereof it appears, that, after giving 
 
 * you credit for all sums of money paid by you, and 
 ' making you debtor for all goods sold and delivered to 
 ' you, from your first entering into trade to the time of 
 ' your bankruptcy, there is a deficiency of the sum of 
 
 * 13,513/.; — give a true and particular account of what 
 ' is become of the same, and how and in what manner you 
 
 * have applied and disposed thereof." To this question 
 the bankrupt refused to give any other than the following 
 general answer : " On goods sold this last year I have lost 
 
 ation that they would not proceed not contrary to the policy of the 
 
 any further under the commission, bankrupt law. Kaye v. Bolton, 
 
 and would join in an application 6T. R. 154. 
 
 to the Lord Chancellor to have it (1) Ante, pages 149. 515. 
 superseded, was held legal, and 
 
 L L 4;
 
 520 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Of the 
 
 bankrupt's 
 
 answers. 
 
 Bankrupt 
 may an- 
 swer " to 
 
 " upwards of 2000/. ; and by mournings I have lost up- 
 " wards of 1000/. ; and for nine or ten years I have (and 
 " I am sorry to say it) been extremely extravagant, and 
 " spent large sums of moneys The Court of King's Bench 
 held this to be a proper question, and the answer very in- 
 sufficient ( 1 ) and unsatisfactory. The bankrupt, however, 
 was afterwards (at his own instance) again brought before 
 the commissioners; and, upon the same question being 
 proposed to him, he particularised a woman upon whom 
 he had spent 5000/. from December 1758 to December 
 1759, and also specified the times of sending and giving it 
 to her; but stated t!)at no person was privy to this, and 
 that the woman, whose name was Sarah Powell, otherwise 
 Taylor, was dead, as he had heard ; that she knew him to 
 be a bankrupt, and never returned the money or any part 
 of it to him ; and that he gave it to her for her main- 
 tenance and expenses, and not for a fund for her future 
 support, or wherefrom he could draw any advantage ; that 
 he knew in the year 1759, when he gave and remitted 
 those sums to her, " that he was not worth any thing, and 
 " that he was remitting to her the money of his creditors :" 
 that he was acquainted with her five or six years, but he 
 could not recollect what he gave her, or spent upon her 
 during the second, third, or fourth years of their acquaint- 
 ance ; nor did he keep any further account or memorandum 
 thereof, either in those years, or in the year 1759, but that 
 he spoke from memory only; that he did not take any of 
 this money from his banker, but always took it from Mr. 
 Thomson (since deceased), who used to sell goods for him; 
 and that all letters between him and this woman, except 
 one or two, were burnt or destroyed : — the Court held 
 this answer also incomplete and unsatisfactory, and ordered 
 the bankrupt to be remanded. (2) 
 
 A bankrupt, however, may answer to the best of his 
 remembrance and belief; and if he swears that he cannot 
 
 (1) Rex V. Perrot, 2 Burr. 1 122. 
 
 (2) Rex V. Perrott, 2 Burr. 
 
 5 
 
 1215.; see also LanghorrCs case, 
 2 Blac. 919.
 
 Sect. 3.] OF THE BANKRUPT. 4^1 
 
 positively answer further, it will be sufBcient.(l) What is a Of the 
 sufficient answer of this nature will be best explained by ansivers. 
 
 an able judgment of Lord Chief Justice Dc Grey's, in 
 
 which he gives a lucid definition of the different grounds q(\^\^ 
 
 of recollection and belief. The questions put to the wit- remem- 
 
 ness in this case were, first : " Did you purchase by a belief"^" 
 
 ' broker the two bales of silk ?" Answer : *' I cannot 
 
 ' positively recollect whether I bought them of a broker, 
 
 ' or not." Secondly : '* Can you form any belief whether 
 
 ' you bought them by a broker or not ?" Answer : " I 
 
 ' should rather believe I bought them by a broker." Thirdly: 
 
 ' Whether, or not, do you believe you bought the two 
 
 ' bales of silk by a broker ?" Answer : " I cannot give 
 
 ' any other answer than I have already given ; viz., I can- 
 
 ' not positively recollect, &c., but I rather believe I did." 
 
 Fourthly : " Whether by the words * I should rather be- 
 
 ' ' lieve I bought them by a broker,' you mean, that you 
 
 ' do believe the two bales of silk were bought b}' a broker ; 
 
 ' or whether you mean to say, you believe that the said two 
 
 ' bales of silk were not bought by a broker ?" The witness 
 
 refused to answer this last question ; and the commissioners 
 
 committed him. Upon being brought up before the Court of 
 
 Common Pleas by habeas corpus^ Lord Chief Justice De Grey 
 
 said : " In the present case the witness had only two ways, or 
 
 " means, to enable him to answer the question put to him, 
 
 " either by recollection^ or belief; the first is hiowlcdge, and 
 
 " must imply consciousness ; but in some cases no traces of a 
 
 " fact remain in a man's memory, whereby he can recollect 
 
 " the fact ; it is possible he may have lost all knowledge 
 
 " of it; and if he has, he can only answer that he doth 
 
 " not Jcnoiio, or cannot recollect the fact. A man may 
 
 " recollect to a certain degree, and though he cannot re- 
 
 " collect at one time, he may at another. Suppose I may 
 
 ** not, or cannot, recollect — yet I may and can believe I did 
 
 *' a certain act, because you tell me, you saw me do it ; — 
 
 (1) Perrot v. Ballard, 2 Ch.Ca.72.
 
 522 OF THE BANKRUFr. [Ch. 13. 
 
 Of the " then I believe I did it, because I give credit to you as a 
 a^ ^^ * " person of veracity. How is it in courts of justice, 
 
 " when a man swears that he neither recollects^ nor believes, 
 
 " that he did such an act ; or that he did, or did not, do 
 " it to the best of his knowledge, remembrance, and belief? 
 *' This is certainly a full answer. A subscribing witness 
 ** to a bond may swear, that he has totally forgot he sub- 
 ** scribed his name as a witness to it, and that he cannot 
 " swear positively, that he saw the obligor seal and deliver 
 *' the bond ; but, seeing his own hand-writing subscribed 
 " as a witness to the execution of it, he may swear he be- 
 " lieves he saw the obligor execute the bond ; and such 
 " answer would be satisfactory to the Court. Suppose a 
 " banker was upon examination asked, whether he paid 
 " such a bill in cash or notes — and he answers he cannot 
 " tell, but his books may inform him ; if^ on looking into 
 " his books, he sees by the hand-writing of his clerks, that 
 " the bill appears to have been paid in cash, or notes, he 
 " then swears to his belief accordingly ; but if his books 
 " be lost or destroyed, and his clerks are dead, or gone, 
 " and he then swears he cannot tell, or doth not know, 
 " whether the bill was paid in cash, or notes, his answer 
 " is full, and ought to be taken as satisfactory. So a mer- 
 " chant buying many goods may have forgot, and cannot 
 " recollect, or be able to swear, whether he bought a certain 
 " particular parcel and sort of goods by himself, or a 
 " broker." The Court, therefore, in this case, held the 
 above answers of the bankrupt to be sufiicient; for, as upon 
 the second answer, the witness would be liable to be con- 
 victed of peijury, if it could be proved that he himself 
 bought the silk, and not a broker, — he had, consequently, 
 sworn to a degree of belief sufficient to answer civil pur- 
 poses. ( 1 ) 
 A positive It was formerly held by Lord Mansfield, that if a bank- 
 not^eces- ^'^P^ swear fully and roundly, — though the commissioners 
 
 (1) Miller's case, 5 Wils. 420. 2 Bl, Rep. 881.
 
 Sect. 3.] OF THE BANKRUPT. 523 
 
 have every reason to believe that what he swears is not Of the 
 true, yet they must take it to be satisfactory, provided it '^"^^ * 
 
 would be satisfactory, in case it ^ere true ; and that, though 
 
 they are convinced he has perjured himself, yet, if he an- ^anly a sa- 
 swers fully, they cannot commit him for false swearing. (1) answer. 
 But there seems to be little reason or principle in this de- Rule as to 
 cision ; and it has since been completely overruled (2) ; — sufficienqr 
 for it would, indeed, be a ridiculous ceremony which the 
 commissioners would have to go through in examining a 
 bankrupt, if they were bound to give credit to any account, 
 however improbable or absurd, merely because he has the 
 effrontery to swear to it. The question, therefore, in cases 
 of this kind is, whether the answers given by the bankrupt 
 be, or be not, sufficient to satisfy the mind of any reason- 
 able man ; for the rule does not hold now, that a positive 
 answer must be taken to be satisfactory, — because the bank- 
 rupt may be indicted for perjury, if it is not true; but even 
 an indictment for perjury cannot be supported, when the 
 secret remains locked up in the bankrupt's own breast. (3) 
 And this doctrine has been recognized by Lord Eldon in 
 subsequent decisions, where it is laid down, that the commis- 
 sioners may properly inquire into the motive of a bankrupt's 
 conduct, with a view to see whether the motive he assigns 
 is so improbable, that they cannot believe him ; and that 
 the bankrupt's answer must be full in this sense — that it 
 must be reasonably satisfactory (4) to the mind that is to 
 
 (1) Pedley's case, Leach, 361. among the most reasonable men, 
 
 (2) Ex parte Nowlan, 6 T. R. that it must often become a matter 
 118. of which case see the Record of great difficulty to decide, what 
 2 Rose, 401. J and see 11 Ves. 511. answer is, or is not, sufficient to 
 Tai/lor*s case, 8 Ves. 328. Ex parte satisfy the mind of any reasonable 
 0/iwr, 1 Rose, 407. 2V.&B. 244. man; for, as Sir William Evans 
 Ex parte Cassidy, 2 Rose, 217. has well observed in his Letter to 
 19Ves. 334. 2 Swanst. 76. Sir S. Romilly, satisfactory and 
 
 (3) Per Lord Kenyon, 6 T. R. unsatisfactory answers approximate 
 118. so nearly to each other, that the 
 
 (4) The judgments of mankind, most acute legal metaphysics can- 
 however, as to right and wrong not supply a satisfactory criterion 
 are found from experience to be so for distinguishing them. 
 
 very different, and this too even
 
 524. 
 
 OF THE BANKRUPT, 
 
 [Ch. 13. 
 
 Of the 
 
 bankrupt's 
 
 answers. 
 
 As to an- 
 swering a 
 question 
 embodj^ing 
 a fact. 
 
 Commis- 
 sioners 
 cannot de- 
 legate 
 their au- 
 thority to 
 take the 
 bankrupt's 
 answer. 
 
 decide. (1) When, however, a single question is followed 
 by a direct answer, and is not afterwards followed up by any 
 other examination respecting the transaction, which may 
 have excited the suspicions of the commissioners, the answer 
 must then be taken to be satisfactory. As where a bank- 
 rupt was asked : " Whether he had not six months pre- 
 vious to the commission executed two conveyances of his 
 estate and effects, or part thereof, to iiis son ?" and he an- 
 swered : " Not to my knowledge." This answer was held 
 satisfactory, no further questions having been put. (2) 
 
 Where a question is put to a bankrupt embodying as a 
 fact, what he said, or did, on a preceding day ; — if he does 
 not deny that he said or did so, or does not qualify it, the 
 bankrupt must be taken to admit the fact alluded to in the 
 question ; because he must know whether he said or did 
 so, or not. (3) But his answering a question, embodying 
 a statement relative to the acts of a third person^ without 
 denying or qualifying that statement, is not to be under- 
 stood as admitting it. (4) 
 
 The commissioners cannot delegate their authority to 
 the assignees, or any other person, to examine the bank- 
 rupt, and take his answer. For example, — a bankrupt was 
 committed upon the following question and answer stated 
 in the warrant of commitment : " You having stated to the 
 " commissioners heretofore, that if you were at liberty, 
 " and out of prison, you could find the several persons 
 " named by you in your balance sheet as debtors to your 
 "estate — and being directed by the commissioners to 
 " communicate to your assignees how, or where such, or 
 " any of such persons could be found ; and T. C. (the as- 
 " signee of your estate) having called upon you, and seen 
 " you in the Fleet prison for that purpose ; — have you 
 
 (1) Taylor''?, case, 8 Ves. 328.; 
 and see ex parte Oliver, 1 Rose, 
 407. 2 Ves. &B. 244. 
 
 (2) Norrish case, 2 Jac. & W. 
 437. Walker'?, case, 1 G. & J. 571 . 
 
 (3) Crowley's case, 2 Swanst. 78. 
 Goddard's case, 1 G. & J. 51. Ex 
 parte Nowlan, 6T. R. 118. Rex 
 V. Perrot, 4 Burr. 1122. 
 
 (4) 2 Swanst. 1.
 
 Sect. 4.] OF THE BANKRUPT. 525 
 
 "given him any such information? and if not, why not?" Of the 
 A ^^ T 1 1 • 1 i»> bankrupt s 
 
 Answer : " 1 nave not, and can give no reason why t answers. 
 
 The bankrupt having obtained a writ of habeas corpus^ 
 
 Lord Kldon held the commitment bad in substance, saying: 
 
 *' If the bankrupt, answering to the direct questions of the 
 
 *' commissioners, had said, he could not, or he would not, 
 
 *' tell, they would then have been authorized to commit 
 
 " him. The commissioners, however, have done this : 
 
 " ' We do not ourselves examine you ; but, you being in 
 
 *' prison, (a circumstance, however, perfectly immaterial) 
 
 *' we send the assignees to you, and now ask you, why you 
 
 ** have not submitted to their examination, and answered 
 
 " to their satisfaction ?' The answer is obvious ; ' You have 
 
 " delegated persons incompetent to exact a submission, 
 
 " upon which you can commit.' The bankrupt is entitled 
 
 " to be discharged." (1) 
 
 Section IV. 
 
 Of committing the Bankrupt, ajid herein of the Remedies for 
 his Discharge. 
 
 The commitment of the bankrupt by the commissioners, 
 for not submitting to their authority, is a criminal pro- 
 cess (2) ; and when such committal takes place, it must 
 be by warrant under their hands and seals. (3) And 
 by section 39. of the new statute, if the bankrupt be When 
 
 committed for refusing to answer, or for not fully answer- bankrupt 
 
 , -11 • • 1 commit- 
 
 ing, — the question put by the commissioners must be ted both 
 
 specified in the warrant, in order that the court, before th*^ ques- 
 
 whom the bankrupt may be subsequently brought, may answer 
 
 judge whether it was a lawful question or not. But, though must be 
 
 the present statute, like the former one (4), only directs the ^P^" ^ '" 
 
 (1) Ex parte Cassidj/, 2 Rose, (5) Section 56., and see ante, 
 217. page 515. 
 
 (2) Re Tat/lor, 3 East, 232. (4) 5 Geo. 3. c. 50. s. 17.
 
 526 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Of commit- 
 ting the 
 bankrupt. 
 
 the war- 
 rant. 
 
 Whether 
 commis- 
 sioners 
 should be 
 
 question to be specified, yet the courts have been hitherto 
 very strict in requiring also the answers of the bankrupt, as 
 well indeed as the whole of the examination connected with 
 the cause of commitment, to be stated verbatim in the war- 
 rant, that they may be the better enabled to determine, 
 whether the bankrupt's answers are satisfactory or not. (1) 
 And it is probable, that the courts will still require such 
 answers, as are applicable to the immediate cause of commit- 
 ment, to be stated in the warrant. It must be remembered, 
 however, that (before the new act) the tsoarrant was the only 
 source, from whence the judge could extract information, 
 whereupon to form his opinion about the validity of the 
 commitment (2) ; which (as Lord Eldon observed) rendered 
 it the more necessary to set out the whole of the examin- 
 ation. But now, as the court or judge, either on an ap- 
 plication for a habeas corpus (3), or on the trial of an action 
 in respect of the commitment (4), (if required thereto by 
 the party committed, or by the defendant in the suit) may 
 inspect and consider the whole of the examination — a 
 power which they did not possess before (5), — the learned 
 framer of the new act thinks, that the necessity of setting 
 forth the whole of the examination may be in future dis- 
 pensed with. (6) The court or judge, however, is only 
 authorised to look at the whole of the examination, " if 
 required by the -party committed ;" and, therefore, it would 
 seem that, if upon application for a habeas corpus, the party 
 committed does not require the court or judge to inspect 
 the whole of the examination, the necessity of setting it 
 forth in the warrant will exist as much as it did before the 
 passing of the act. 
 
 In committing a bankrupt for not answering satis- 
 factorily, it is doubtful, whether the commissioners should 
 be influenced by extrinsic evidence ; but if they are so in- 
 
 (1) Goddar^s case, 1 G. & J. 55. 
 Coombes's case,2Rose,598. Brown^s 
 case, ibid. 400. Crowley'^ case, 
 2 Swanst. 80. Tomlin's case, 1 G. 
 & J. 373. 
 
 (2) Tomlin's case, 1 G.& J. 375. 
 
 (3) Section 39. 
 
 (4) Section 40. 
 
 (5) Coombes'% case, 2 Rose, 399. 
 
 (6) Eden B. L. 87.
 
 Sect. 4.] OF THE BANKRUPT. 527 
 
 fluenced, the evidence should be fully read over to the bank- Ofcomviit- 
 rupt, before they can call upon him for an answer to the bankrupt. 
 
 questions proposed to him in his examination. (1) There- 
 
 fore, where it appeared in a warrant of commitment, that ^^ extrin- 
 the commissioners, in the questions put to the bankrupt, sic evi- 
 had stated facts, of which they were informed by the de- "^"^^• 
 position of the messenger — but the deposition was not set 
 forth in the warrant, nor did it thereby appear to have 
 been read over to the bankrupt at the time of his examin- 
 ation, the effect of it being only stated in the warrant; — 
 Lord Eldon held, that the commitment was substantially 
 insufficient, and that this was not merely a defect in 
 form. (2) 
 
 When the last examination of a bankrupt was repeatedly What is 
 adjourned, in oi'der that he might produce a written ac- ^'^^"^f'^'" 
 count, or balance sheet, which he had frequently referred ment. 
 to, as the only mode of explaining his trade and dealings, 
 and the last adjournment was made upon his assurance, 
 that he would produce such account if further time was 
 given; — the commissioners were held justified in committing 
 him, when the account was not produced on the day to 
 which the last adjournment was made, nor any satisfactory 
 answer given by the bankrupt, explaining why it was not 
 produced. (3) 
 
 A single question followed by a direct answer, which What is 
 question is unvaried in terms, and not followed up by any 
 other examination respecting the transaction, which may 
 have excited the suspicions of the commissioners, does 
 not (as we have already seen) afford grounds for a valid 
 commitment ; for the judge, who may have afterwards to 
 decide upon such commitment, has no means of determining 
 whether the answer is satisfactory, or unsatisfactory. (4') 
 
 (1) Crowley'?, case, Buck. 264. (4) fTa/^er's case, 1 G. & J. 371. 
 2 Swanst. 1. Norris's case, 2 Jac. & W. 437.; 
 
 (2) Ibid. and see ante, 524. 
 
 (3) Goddard's case, 1 G. & J. 45. 
 Davie v. Mitford, 4 B. & A. 356. 
 
 not a 
 cause.
 
 528 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Of commit 
 ting the 
 bankrupt. 
 
 Where 
 there 
 should be 
 a suppli- 
 mental 
 warrant. 
 
 Where 
 bankrupt 
 refuses to 
 be sworn, 
 &c. 
 
 Warrant 
 must pur- 
 sue the 
 words of 
 the sta- 
 tute. 
 
 What is a 
 bad con- 
 clusion. 
 
 Where a bankrupt, after being committed for not answer- 
 ing satisfactorily, is again examined by the commissioners, 
 and remanded in consequence of his answers not being 
 more satisfactory than at first, there ought to be a supple- 
 mental warrant of commitment or detainer, stating what 
 had passed in the way of question and answer at such 
 second examination ; and where this was omitted, Lord 
 Eldon thought it a substantial, and not a mere formal de- 
 fect. (1) It is, however, no objection to a warrant, which 
 recites several examinations, that it omits to mention that 
 the bankrupt, who had been committed, was discharged at 
 the conclusion of one of the (2) examinations. 
 
 And where the bankrupt, upon the commissioners pre- 
 paring to administer an oath to him, refuses to be sworn, 
 or to give any account of his property, the commissioners 
 in this case need not in their warrant of commitment set forth 
 any specific question ; for this amounts to a refusal to answer 
 all possible questions which can be suggested. (3) And 
 when the bankrupt refused to be sworn, on the ground that 
 his legal adviser had not arrived, and the warrant stated 
 generally that he refused to be sworn, without adding the 
 reason assigned by him for his refusal, that was held to be 
 sufficient. (4) 
 
 As the statute only gives the commissioners the power 
 to commit the party, U7itil he shall submit himself to be 
 sworn, or full answers make, to their satisfaction, to such 
 questions as shall be put to him, or until he shall sign and 
 subscribe his examination, the warrant of commitment 
 (which is in restraint of the liberty of the subject) must 
 strictly pursue the words of the statute in the conclusion of 
 it, otherwise the bankrupt will be ordered to be discharged. 
 A commitment, therefore, of a bankrupt under the 39M sec- 
 tioiif " until he shall conform to the authority of the com- 
 
 (1) Coomhes's case, 2 Rose, 396. 
 Brown^s case, ibid. 400. 
 
 (2) Bromleyh case, 2 Jac. & W. 
 455. 
 
 (3) Ex parte Page, 1 B. & A. 
 568. 
 
 (4) Nobes V. Mountain, 3 B. & 
 B. 253. 7 Moore, 39.
 
 Sect, if.} OF THE BANKRUPT. 529 
 
 missioversy" would be held bad ; for though the word Ofco-m- 
 coriformy instead of the word mhmit, might be well enough, /janh-upL 
 
 being of the same sense, — yet the commissioners have other 
 
 authorities besides that of cxami7iing, and it might not ap- 
 pear but that it required a submission to them in other 
 respects. (1) So, also, a commitment "till he shall be 
 discharged by due course of law (2)," or " for misbe- 
 haviour (3)," has been held bad ; as well as one " for pre- 
 varication[^)" for he might pi'evaricate, and yet give a full 
 answer at last. And a commitment, until he shall submit 
 himself, " and full answer make to all such questions as 
 inay be put to him," seems to have been on one occasion (5) 
 thought insufficient ; though in a recent case such a commit- 
 ment was held (6) good, — the Court saying, that the ques- 
 tions must be intended to mean lawful questions. The proper What the 
 conclusion, however, of the warrant seems to be, " until P"'*'?^''' 
 he shall submit himself to us, the said commissioners, and sion. 
 full answer make to the questions so put to lum by us as 
 aforesaid." (7) 
 
 When the commissioners commit the bankrupt, for not 
 attending his assignees (when required) to assist them in 
 making out the accounts of his estate, (as they are em- 
 powered to do under the \\6th section (8) of the new 
 act,) the warrant must also pursue the words of the 
 section giving them such power. In this case, they are 
 authorised to commit, " until the bankrupt shall conform 
 to their satisfaction." 
 
 "Where one of the reasons appearing upon the face of the Whether 
 
 commitment was illeo;al, although there was another set ^ commit- 
 '^ ° , ment bad 
 
 forth upon it which was good, yet, as the person was com- in part, is 
 
 bad ill toto. 
 
 (1) Bracey'?, case, 1 Salk. 348. (5) Miller'i case, 3 Wi!s. 428. 
 Comb. 391. Bracey v. Harris, 2 Bl. 881. 
 
 5 Mod. 309. (6) Nobes v. Mountain, 3 B. & 
 
 (2) Hul/mgshed^s case, 2 Lord . B. 233. 7 Moore, 39. 
 
 R. 851. Rex V. Nathan, 2 Str. S80. (7) ilf^iV/er's case, supra. Rex\. 
 
 (3) Milter's case, 2 Bl. 882. Perrott, Burr. \ 1 22. 
 .1144. (8) And see ante, 512. 
 
 (4) Rex V. Nathan, supra. 
 
 M M
 
 530 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Of com- 
 mitting the 
 bankrupt. 
 
 As to time 
 of making 
 commit- 
 ment. 
 
 When the 
 answer 
 would 
 only tend 
 to crimi- 
 nate the 
 bankrupt. 
 
 When he 
 absolutely 
 refuses to 
 
 Where 
 
 bankrupt 
 
 applies for 
 
 mandamus 
 
 to be 
 
 further 
 
 examined. 
 
 Remedy 
 for dis- 
 charge by 
 habeas 
 corpus . 
 
 mitted until he should submit also in the matter in which 
 the commissioners had no authority, the commitment was 
 held illegal in toto. (1) But this decision may be con- 
 sidered as doubtful ; for it has been said, that where one 
 cause of the commitment was manifestly illegal, that per- 
 haps might be rejected as superfluous, and the commitment 
 be referred to that cause, which, if true, was a legal one. (2) 
 
 It is no objection to the commitment, that it is made in 
 the absence of the bankrupt ; or that it is made some days 
 after the examination took place, notwithstanding it bears 
 date on the day of the examination. (3) 
 
 Though a commitment of a bankrupt is illegal, (for not 
 answering a particular question the answer to which would 
 directly criminate himself) yet, if his answer would only 
 tend to shew that he has committed a criminal act, it seems, 
 that a committal would then be good for not answering the 
 question. (4) And, if a bankrupt absolutely refuse to account 
 for part of his effects, on the ground that his answer to 
 the inquiries of the commissioners would criminate him- 
 self, he may, nevertlieless, be legally committed for such 
 refusal (5), on the ground that his answer is unsatisfactory 
 within the language of the act. 
 
 In a recent case, where the bankrupt (who had been com- 
 mitted for not answering satisfactorily) applied for a man- 
 damus to examine him, professing his readiness to make the 
 disclosures required, the Court of King's Bench granted 
 the writ — but directed that it should not issue without an 
 order fi-om a judge, after the bankrupt had suggested the 
 grounds upon which he desired to be further examined, 
 and the refusal of the commissioners to examine him. (6) 
 
 The proper remedy for the bankrupt to pursue, when he 
 is illegally committed by the commissioners, is to apply 
 
 (1) Ex parte James, 1 P. Wms. 
 
 610. 
 
 (2) Miller v. Scare, 2 Bl. 1 141. 
 
 (3) Batty V. Gresley, 8 East, 
 327. Salth case, 13 Ves.361. 
 
 (4) Ex parte Cossens, Buck, 531 . 
 
 (5) Ex parte Oliver, 1 Rose, 
 407. 
 
 (6) Bromley's case, 5 Dow. & R. 
 310.
 
 Sect. 4.] OF THE BANKRUPT. 531 
 
 for a habeas corpus. (1) This writ may be moved for by Qfcom- 
 him — as well as by any other party who is committed by bankrupt. 
 
 the commissioners, and who thinks himself improperly 
 
 dealt with; and it is returnable either before the Lord 
 Chancellor, or any of the superior courts at Westminster 
 in term time — or before any one of the twelve Judges in 
 vacation. It was formerly supposed, that the Lord Chan- 
 cellor could not issue the writ at common law in vacation (2) ; 
 but in a late case Lord Eldon decided, that the Chancellor, 
 as well as the Judges, had authority to do so. (3) And, 
 whenever the writ is returnable before the Lord Chancellor, 
 he exercises jurisdiction, not as sitting in bankruptcy, but 
 as a law officer having a right to issue the writ. (4) Care 
 should be taken, that a correct return is made to the 
 habeas corpus; for on the application of the bankrupt's 
 discharge, the Lord Chancellor will not go out of the 
 return. (5) 
 
 Notice of the application for the writ of habeas corpus When 
 should, in general, be given by the bankrupt to the as- should be 
 signees ; though there may be some cases, where the right given of 
 to be discharged is so clear, that it may be done at once, p^fjop^ ^' 
 Where notice, however, is necessary, a notice given on 
 Saturday afternoon for Monday has been held insuf- 
 ficient. (6) 
 
 The commissioners may, after the issuing of the writ of Commis- 
 
 habeas corpus and before the return to it, make (if necessary) ^'^"^""^ 
 
 -^ _ ' ^ . . i"3y make 
 
 a fresh warrant, stating more fully the cause for detaining a fresh 
 
 the bankrupt in custody ; and such warrant may, by words warrant. 
 
 of reference, incorporate the formal parts of the first 
 
 warrant. (7) 
 
 When the habeas corpus is returned, the Court has to 
 
 exercise its discretion, in deciding whether the answer of 
 
 (1) Tat/lor's case, 8 Ves. 350. (4) 7 Ves. 425. 
 
 Ex parte Tomkinson, 10 Ves. 106. (5) C/w<;/(?ys case, 2 Swanst. 75. 
 Ex parte Hijams, 18 Ves. 257. (6) Bromley\ case, 2 Jac. &W. 
 
 (2) Je7iks's case, 7 Harg. St. Tr. 455. 
 
 467. (7) Ex parte Page, 1 B. & A- 
 
 (5) Crowley'i, case, Buck, 264. 568. 
 
 M M 2
 
 532 
 
 OF THE BANKRUPT. 
 
 [Ch. IS. 
 
 Of com- 
 mitting the 
 bankrupt. 
 
 As to affi- 
 davits in 
 explana- 
 tion. 
 
 When 
 mere in- 
 sufficiency 
 mform, 
 court will 
 re-coni- 
 mit; 
 
 except 
 when. 
 
 Court 
 may look 
 at whole 
 of the ex- 
 amination. 
 
 the bankrupt is satisfactory, or not; and if it believes the 
 statement which the commissioners have disbelieved, it 
 will, of course, order him to be discharged. (1) But the 
 Court has no authority to receive affidavits in explanation 
 of the party's conduct and answers before the commis- 
 sioners, — but only to inquire into the validity of the cause 
 of the commitment, as stated on the face of the return. (2) 
 The Court will, therefore, not discharge a bankrupt, 
 merely upon his producing affidavits, that he had made a 
 discovery of his estate and effects, — when he was committed 
 for not answering and making such discovery ; for if the 
 statement in the commitment be untrue, he may bring an 
 action of false imprisonment. (3) 
 
 If, upon the return of the habeas corpus, any insufficiency 
 appears merely in \he form of the warrant, by its omitting 
 to specify any question put by the commissioners, — the 
 Court or Judge, before whom the party shall be brought, 
 may (and is indeed required by the statute (4) ) to recommit 
 him, unless he can shew that he has fully answered all 
 lawful questions put to him by the commissioners; or (if 
 he was committed for refusing to be sworn, or for not 
 signing his examination,) unless it shall appear to the Court, 
 or Judge, that he had a sufficient reason for the same. 
 And, as has been already observed (5), in case the whole 
 of the examination shall not have been stated in the warrant 
 of commitment, the Court or Judge is directed (if required 
 thereto by the party committed) to inspect and consider 
 the v.'hole of the examination (6), whereof any such question 
 was a part ; and if it shall then appear, that the answer of 
 
 (1) Ex parte Oliver, 1 Rose, 407. 
 
 (2) Ex parte James, 1 Chit. Rep. 
 110. 
 
 (3) Gregory's case, 5 Mod. 568.; 
 and see Miller v. Seare, 2 Bl. 
 1141. 
 
 (4) Section 39.; and see Ex 
 parte Page, 1 B. & A. 568. 
 
 (5) Ante, 526. 
 
 (6) LorJ Eldon in his judgment 
 
 inCoombes's case, 2 Rose, 599. in- 
 timated, that there would he some 
 difficulty, when the application for 
 a discharge upon a habeas corpus 
 is made to a Judge at chambers, 
 in regard to the mode by which 
 the Judge could look into the pro- 
 ceedings, as there was some doubt, 
 with respect to his power to com- 
 pel the production of them. But
 
 Sect. 4.] OF THE BANKRUPT. 533 
 
 the party committed is satisfactory, tlie Court or Judge Ofcom- 
 may, in that case, order him to be discharged. Tanknpt^. 
 
 What are considered matters oi form, and what of sub- 
 
 stance, in the construction of the warrant of commitment, ,ner^\^at. 
 may be collected from some of the preceding cases. In ters of 
 one of these, where the bankrupt refused to be sworn, and /"'''"• 
 the warrant committed him till he should full answer make 
 to the questions " put to him as aforesaid," no questions 
 having been previously set out, — this inaccuracy was held 
 to be mere matter oiform, which would justify the Court in 
 recommitting the bankrupt. So, where the warrant set 
 out several questions, to some of which, taken singly, the 
 answers were satisfactory, — it was considered no valid ob- 
 jection, that the warrant committed the party till he should 
 full answer make " to the questions so put to him as afore- 
 said." (1) These are two instances of insufficiency merely 
 in the form of the warrant. The above noticed case of 
 Ex parte Cassidy (2) (where it appeared on the face of the 
 warrant, that the commissioners had improperly delegated 
 their authority to other persons to examine the bankrupt) 
 will explain what is considered a defect in substance. 
 
 The commissioners, having a discretionary power to com- When 
 
 mit the bankrupt if his answers are not satisfactory to '^.of"'"'s- 
 
 ,. , , • c • ■ sionersnot 
 
 themselves, are not liable to an action tor so committing liable for 
 
 him, — notwithstanding he is in fact discharfjed afterwards cpn™it- 
 
 . . tin" bank- 
 by habeas corpus, on the ground of the Court thinking rnpt. 
 
 the answers to be satisfactory (3); though the contraiy 
 
 of this decision was formerly held. (4-) Neither will any 
 
 ■now , as Ae statute expressly directs the production of that, which he 
 
 the Judge, if required thereto by is directed b}^ the legislature to 
 
 the party committed, to inspect inspect. 
 
 the whole of the examination, for (1) Ex parte Vogel, 2 B. & A. 
 
 the purpose of considering whether 219. 
 
 he has answered satisfactorily or (2) Ante, page 525. 
 
 not, it is submitted, that as a ne- (3) Dowelt v. Impey, 1 B. & C. 
 
 cessary consequence of this pro- 165.; and see ante, page 166. 
 
 vision, the Judge must now be (4) ikfi^r v. iScare, 2 Bl. 1141. 
 
 clothed with the power of ordering 
 
 M M 3
 
 534 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Of com- 
 mitting the 
 bankrupt. 
 
 When 
 bankrupt 
 desirous 
 to com- 
 plete his 
 examina- 
 tion. 
 
 action lie against them for a commitment, which is bad only 
 for a formal defect in the warrant. ( 1 ) 
 
 When a bankrupt is committed for not answering, and 
 is afterwards desirous to complete his examination, and be 
 discharged, he must send word to the commissioners, that 
 he is willing to submit and answer the questions, — and the 
 commissioners will then appoint a meeting at the expense 
 of the estate ; for the bankrupt has no estate, or, at least, 
 is supposed to have none. (2) And where, in such a case, 
 the bankrupt applied to be brought before the commis- 
 sioners, but the assignees refused, unless he would pay 
 the expenses of the meeting, — the Lord Chancellor di- 
 rected, that if there were no effects, the commissioners 
 should meet gratis, receiving their fees out of future effects, 
 if there should be any ; and added, that if the bankrupt 
 should be again committed for not answering fully, he 
 would find it very difficult to obtain another order to bring 
 him up. (3) 
 
 If any gaoler, to whose custody the bankrupt, or any 
 other person, shall be committed by the commissioners, 
 shall suffer either the one or the other to escape (4), he is 
 liable to a penalty of 500/. 
 
 (1) Bracci/*s case, Comb. 391. 
 
 (2) Rex V. Jackson, 1 T. R. 654. 
 Ex parte Graham, 2 Bro. 48. 
 
 (3) Ex parte CoAew, 18Ves.294. 
 
 (4) Section 58.
 
 Sect. 5.3 bankrupt's rights and privileges. 5'il 
 
 Section V. 
 Of the Banknipt's Rights and Privileges. 
 
 1. Of his Privilege.fr 0711 Arrest. 
 
 2. Of his Maintena7ice during his Examination. 
 
 3. Of his Allowajicc under the Commission. 
 
 4. Of his Right to the Surj^lus. 
 
 5. As to his Right to acquire ProjJerti/ before obtaining 
 
 his Certificate. 
 
 (And see further " Supersedeas,'* " Certificate" 
 *' Actions by an micertificated Bankrupt") 
 
 1. Of the Privilege of the Bankrupt from Arrest. 
 
 The bankrupt is by the new statute ( 1 ) declared to be For what 
 free from arrest or imprisonment by any creditor, in P^^o'l 
 coming to surrender, as well as after such surrender, for privileged. 
 the period of forty-two days — and for such further time as 
 shall be allowed him for finishing his examination, not 
 exceeding three calendar months (2) — provided he is not 
 in custody at the time of his surrender. And if he should 
 be arrested for debt, or on any escape warrant (3), in 
 coming to surrender, or shall after his surrender be so ar- 
 rested within the before-mentioned time, he is entitled (on 
 producing the summons under the hands of the commis- 
 sioners to the officer who shall arrest him, and giving him 
 a copy thereof) to be immediately discharged. If the 
 officer shall afterwards detain him, he is liable to a penalty 
 of Si. for every day of such detention, to be recovered by 
 the bankrupt for his own use, by action of debt in his own 
 name, in any court of record at Westminster, with full 
 costs of suit. 
 
 (1) Section 117. (3) That is, an escape warrant 
 
 (2) Section 118. at the suit of a creditor. 14 Ves. 
 
 41. 1B.&A.511. 
 MM*
 
 536 
 
 OF THE bankrupt's 
 
 [Ch. 13. 
 
 Privilege 
 from 
 arrest. 
 
 Does not 
 lose his 
 privilege 
 by refusing 
 to sur- 
 render, if 
 he sur- 
 renders in 
 due time 
 after- 
 wards. 
 
 If in pri- 
 son, not 
 protected 
 from sub- 
 sequent 
 detainers. 
 
 Until ac- 
 tual sur- 
 render, 
 privilege 
 confined 
 to the act 
 of his 
 going to 
 surrender. 
 
 And, though a bankrupt may have been apprehended 
 by the warrant of the commissioners, for any refusal to 
 submit to their authority, or any non-conformity to the 
 provisions of the act of parHament, — yet, if he shall (within 
 the time allowed him to surrender) afterwards submit to be 
 examined, and in all things conform, he will be entitled to 
 the same benefit under the act, as if he had voluntarily 
 surrendered. ( 1 ) It is also immaterial, whether the bank- 
 rupt surrender at a private, or a public meeting of the 
 commissioners ; for he is in either case, after his surrender, 
 equally entitled to his privilege from arrest. (2) 
 
 If the bankrupt be in prison at the time of his surrender, 
 he is, of course, not protected from subsequent detainers: 
 for the above section only gives him the privilege of free- 
 dom from arrest or imprisonment, — provided he is 720/ in 
 custody at the time of his surrender. (3) 
 
 This privilege of freedom from arrest is intended to en- 
 able the bankrupt to surrender himself to the commission- 
 ers, as well as to encourage him the more speedily to do so, — 
 and is not a general and independent privilege, during the 
 whole time allowed by the act of parliament for the sur- 
 render. Therefore, until actual surrender, the privilege is 
 confined to the act of his going with that object. Thus, if 
 a bankrupt be abroad, and returns with an intention to sur- 
 render, and is arrested on his landing, or within a day or 
 two after his arrival, before he can conveniently make his 
 surrender, — he will be entided to the privilege, if it appears 
 that he was actually going to surrender. (4') So, where a 
 bankrupt was arrested in London, and it appeared that he 
 was bond Jide in his way from Bath to Liverpool, for the 
 purpose of examination before the commissioners, — he was 
 discharged by Lord Eldon, upon motion. (5) But, where a 
 bankrupt came from Holland to England within the forty- 
 two days, with an intent to surrender himself upon the forty- 
 
 (1) Section 115. 
 
 (2) Ex parte Wood, 1 Rose, 46. 
 (.3) Ex parte Goldie, 2 Roge, 345. 
 
 (4) Kenyon v. Solomon, 1 Cowp. 
 156. 
 
 (5) Ogle's case, 11 Ves. 556.
 
 Sect. 5.] RIGHTS AND PRIVILEGES. 5S7 
 
 second day — but, finding that his time for surrender was en- Privilege 
 larged to a further day, he then laid aside his design of sur- arrest. 
 
 rendering himself upon the forty-second day, and did nol, in 
 
 irutkf mean to surrender until the enlarged day — and in the 
 intermediate time was arrested by one of his creditors, — 
 it was held, under these circumstances, that he was not en- 
 titled to this privilege. ( 1 ) Where a bankrupt, however, 
 before he received a summons from the commissioners, 
 delivered his keys and effects to the messenger, and pro- 
 mised to submit to the directions of the law — and, only 
 an hour after he had been served with the commissioners* 
 summons to surrender, was arrested ; — upon petition to the 
 Lord Chancellor to be discharged, it was considered in 
 this case, that what the bankrupt had already done was all 
 that he could then do, and was, so far, a compliance with 
 the requisitions of the bankrupt law ; — he was, therefore, 
 ordered to be discharged, upon his consenting not to sue 
 the officer who arrested him. (2) 
 
 When the bankrupt has surrendered, his privilege con- If examin- 
 
 tinues from that time until and during the whole of the p'-^''" ,^"" 
 
 . largeci, 
 
 forty-second day (3); — or, if the time for his surrender privilege 
 
 has been enlarged by the Lord Chancellor, and he then continues, 
 duly surrenders, and the commissioners enlarge the time exceedinf^ 
 for his examination.) his privilege will continue during three ca- 
 the whole of such enlarged time (not exceeding three njouths 
 calendar months) as the commissioners shall by indorse- 
 ment upon the summons appoint. (4) And the same, if 
 the commissioners enlarge the time for his examination 
 (after he has surrendered) within the forty-two days. (5) 
 And, though the commissioners omit to insert in their 
 certificate of the surrender the actual day, until which the 
 
 (1) Kenyonv. Solomon, 1 Cowp. (4) Section 118.; and see Simp- 
 1 5Q. sun's case, Buck, 4-2i. 2 Wils. 127. 
 
 (2) Ex parte De Fries, Davies, Ex parte Hawkins, 4 Ves. 691. 
 163. (5) Simpso7i' s vaiC, swpra. Davis 
 
 (3) Ex parte Donlevy, 7 Ves. v. Trotter, 8 T. R. 476. Darby v. 
 317. Ex parte jDawj, Buck, 80. Baughan, sT. R. 209.; and see 
 
 re Dalton, 1 Ball & B. 130.
 
 538 
 
 OF THE bankrupt's 
 
 CCh. 13. 
 
 Pnvilege 
 from 
 arrest. 
 
 Where 
 bankrupt 
 attends 
 without a 
 
 Where 
 commis- 
 sioners ad- 
 journ sine 
 die. 
 
 Where 
 time for 
 surrender 
 is expired, 
 and bank- 
 rupt ob- 
 tains an 
 order for 
 his sur- 
 render. 
 
 examination is adjourned, the bankrupt is still entitled to 
 his privilege ; for his protection is granted b}' the statute, 
 independently of the commissioners' certificate. ( 1 ) But 
 commissioners cannot give the bankrupt a protection for 
 an unlimited period of time beyond three calendar months, 
 in order to enable him to make a full disclosure of his 
 estate and effects. (2) The omission by the commis- 
 sioners to indorse the adjournment of the bankrupt's last 
 examination on his summons, will not deprive him of his 
 privilege. (3) And where a bankrupt's last examination has 
 been adjourned sine die, — if at a meeting under the com- 
 mission for a distinct purpose, and without a summons, he 
 voluntarily attends in order to be examined, and is there 
 arrested, — he is entitled to be discharged on general com- 
 mon law principles : viz. as a witness, or party, attending 
 the commissioners. (4) But where the last examination is 
 adjourned sine die, on the ground that the commissioners 
 consider all further examination useless — and during the 
 adjournment, and before any further meeting is had, the 
 bankrupt is arrested, — he will not in this case be entitled 
 to be discharged (5) ; unless, indeed, the commissioners 
 have (pursuant to the 118th section) indorsed a protection 
 on the bankrupt's summons. 
 
 Where the time for the bankrupt's surrender had ex- 
 pired, and he had obtained an order of the Lord Chan- 
 cellor for the commissioners to be at liberty to meet and take 
 his surrender, and he was afterwards taken in execution ; — 
 Lord Eldon, upon his application to be discharged, said 
 it was a new case, and doubted his own authority to make 
 the order, as the bankrupt was not strictly comi?ig to sur~ 
 render accordifig to law ,• and he added, that if he made any 
 order for the bankrupt's discharge, it must be upon the 
 plaintiflP in the action, and not upon the gaoler. (6) 
 
 (1) Ex parte Leigh, 1 G. & J. 
 264. Price's case, 3 V. & B. 23. 
 
 (2) Section 118., ante, 515.; and 
 see Claughlon v. Leigh, 1 B. & C. 
 652. Ex parte Woods, 1 Cr.&J.75. 
 
 (3) Price's case, 3 V. & B. 23. 
 
 (4) Ex parte Ross, 1 Rose, 260. 
 
 (5) Ex parte Woods, 1 G.& J.75. 
 
 (6) Anon. 15Ves. 1.
 
 Sect. 5.] RIGHTS AND PRIVILEGES. 559 
 
 After the bankrupt has passed his final examination, if Privilege 
 he is summoned by the commissioners to attend them upon arrest. 
 
 declaring a dividend, or for any other purpose, he is 
 
 equally protected with all other persons who may be ex- fgnjcr jf 
 amined before them, eundo, redeundo, et morando ; for the sumvwned 
 bankrupt, or person so summoned, is to be considered in n^ss,^'JJers 
 the character of a witness, or party attending a legal protected 
 tribunal, sitting in the nature of a court in the administra- ^^"^> ^^ 
 tion of justice. ( 1 ) But if the bankrupt, or any other party, 
 comes voluntarily before the commissioners, without a sum- 
 mons, and without any 7iecessity for his so doing, he will 
 then not be privileged (2) eimdo et redeundo. 
 
 A bankrupt is entitled to the privilege of a party at- Upon at- 
 tending his own cause, in freedom from arrest, on his re- petition 
 turn from attending his petition for leave to surrender, for leave 
 after the time originally appointed for his surrender has *** ^^^' 
 expired, — provided he deviates no further, than to call on privileged 
 his solicitor to arrange the proper steps for giving effect to ^^deundo. 
 the order. (3) 
 
 And whether the debt, upon which a bankrupt is ar- Imma- 
 rested, is, or is not, proveable under the commission, he is ^^^^ j.j^ ^' 
 equally entitled, in all the cases before mentioned, to the debt is 
 privilege from arrest. (4') The privilege also extends to of^n^t 
 an attachment for not paying money under an award, Priviiecre 
 which has been made a (5) rule of court, — or for not lodging extends to 
 money in court, pursuant to a decree or order of the Court ^^^j. ' 
 of Chancery. (6) For, though the form of the process be under an 
 criminal, yet if it issue to compel payment of a debt, it will a^j^'-f "^ 
 be as much an arrest within the meaning of the statute, as 
 every other mode by which a creditor can arrest a bank- 
 rupt for a debt. (7) And where the Lord Chancellor ^ll^^^^" 
 
 rected. 
 
 (1) Arding v. Flowers, 8 T. R. (4) Darby v. Baugham, 5 T.R. 
 534. 209. 
 
 (2) Anon. 1 Salk. 544. Ex parte (5) Ex parte Parker, 3 Ves. 554. 
 Ross, 260. (6) Wa/l v. Atkinson, 2 Rose, 
 
 (3) Ex parte Jackson, 1 5 Ves. 1 96. 
 
 116. (7) Re M'fViUiams, 1 Sch. & 
 
 Lef. 169.
 
 540 
 
 OF THE bankrupt's 
 
 [Ch. IS. 
 
 Privilege 
 from 
 arrest. 
 
 Where 
 arrest ille- 
 gal, all de- 
 tainers 
 bad. 
 
 Surrender 
 does not 
 protect 
 bankrupt 
 escaping 
 from pri- 
 son. 
 
 As to pro- 
 tection 
 from ar- 
 rest at the 
 suit of the 
 crown. 
 
 directed an action to be brought by the bankrupt against 
 the assignee to try the validity of the commission, and the 
 bankrupt (having failed in the action) was taken in exe- 
 cution for the costs, he was, on petition to the Chancellor, 
 ordered to be discharged. (1) 
 
 When the arrest is illegal, all detainers are inoperative, 
 and the bankrupt will be discharged from them ; for it is 
 the arrest alone that gives any efficacy to the detainers. (2) 
 But, where a bankrupt was committed for a contempt, in 
 not having obeyed an order of the Lord Chancellor to 
 bring into the Master's office the title deeds of an estate 
 sold under the commission — and the sale having been un- 
 duly made, the bankrupt was ordered to be discharged 
 from that commitment — but detainers having been lodged 
 against him, he petitioned also to be discharged from those 
 detainers ; — Lord Eldon, after consulting with two of the 
 judges, held, that these subsequent detainers must stand (3), 
 according to the practice of the law. 
 
 Where a bankrupt escaped out of the custody of the 
 marshal of the King's Bench, and surrendered to a com- 
 mission subsequently issued, being then at large, — a sur- 
 render, under these circumstances, was held not to operate 
 as a protection against the right of the marshal to retake 
 him, and retain him in custody. (4) 
 
 It was formerly considered, that a bankrupt was not 
 privileged from arrest upon an extetit, even whilst under 
 examination, as the crown was not bound by the bankrupt 
 acts. But it has been more recently held, that, although 
 the crown was clearly not bound by the statutes in bank- 
 ruptcy, the bankrupt was privileged from arrest whilst in 
 actual attendance before the commissioners : for that the 
 
 (1) Ex parte Gregory , l G.& J. 
 177. 
 
 (2) Ex parte Ross, supra. Ex 
 parte Moore, Buck, 521 . Ex parte 
 Wilson, 1 Atk, 152.; but sec Bar- 
 clay V. Fabcr, 2 B. & A. 7'JJ. 
 control. 
 
 (3) Ex parte Dumbell, 10 Ves. 
 528. 
 
 (4) Anderson v. IIamj)fon, I B. 
 & A. 308. Ex parte Johnson, 
 14 Ves. 56.
 
 Sect. 5.] RIGHTS AND PRIVILEGES. 541 
 
 spirit of the common law affects the Crown equally with Privilege 
 any other creditor ; and the principle is, that all witnesses „^^g( 
 
 are protected in attending a Court competent to enforce • 
 
 their attendance. (1) If, however, the bankrupt be ar- 
 rested at the suit of the Crown, when not in actual attend- 
 ance before the commissionei*s, or on his way to or from 
 them, he is in this case not entitled to be discharged from 
 such arrest, — although the commissioners have in fact 
 enlarged the time for his examination, and extended his 
 protection. (2) When the bankrupt is entitled to be dis- 
 charged from an arrest at the suit of the Crown, the 
 order of discharge will be made on the gaoler, who has 
 the bankrupt in custody. (3) 
 
 A bankrupt, however, may be taken by his bail, even whilst Not pro- 
 attending to pass his examination, so as he is not taken tected 
 
 a"'ainst his 
 away from the commissioners before his examination is bail. 
 
 finished ; for the statute expressly excepts the case, where 
 the bankrupt is in custody at the time of his surrender ; 
 and a defendant is always considered in law to be in the 
 custody of his bail. (4) But in the case of bail to the sheriff 
 on an arrest^ — that is not a custody within the strict mean- 
 ing of the statute, at least, while the bail permit the prin- 
 cipal to go at large — whatever it might be if they kept him 
 in their actual cnsfodij. (5) Lord Hardwicke (in a case of 
 this kind) observed, that he did not know that bail, 
 taking their principal coming to a court of justice to be ex- 
 amined as a witness, had ever been determined to be guilty 
 of a contempt of the court, provided they brought him to 
 be examined by that court. (6) The courts, however, As to en- 
 have sometimes (upon application of the bankrupt) en- |?''S^"f 
 larged the time for his surrendering in discharge of his surrender 
 
 bail, in order that he might pass his examination before "? '^'*' „ 
 
 <=> >■ charge ot 
 
 bail. 
 
 (1) Ex parte Russell, 1 Rose, (4) Ex parte GiMon«, 1 Atk. 258. 
 278. 19Ves. 163. (5) Ex parte Leigh, 1 G. & J. 
 
 (2) Ex parte Temple, 2 Rose, 22, 267. 
 
 (3) 1 Rose, 278. 19 Ves. 163. (6) 1 Atk. 238.
 
 54.2 
 
 OF THE bankrupt's 
 
 [Ch. 13. 
 
 Privilege 
 from 
 arrest. 
 
 Mode of 
 proceed- 
 ing to be 
 discharged 
 from 
 arrest. 
 
 When 
 bankrupt 
 in custody 
 
 such surrender. (1) But, as the commissioners have now 
 authority to have the bankrupt brought before them to be 
 examined, whether he is in custody upon mesne or upon 
 final process, there does not seem to be any necessity 
 henceforth for such an application ; the object of which was, 
 to prevent the inconvenience and expense of the commis- 
 sioners attending the bankrupt in prison to take his examin- 
 ation, as they were formerly obliged to do when he was 
 charged in execution. (2) The Court of Exchequer, however, 
 have made an order of this kind since the commissioners 
 have possessed the authority to have the bankrupt so 
 brought before them (3) — a power which was first given 
 them by the 49 G. 3. c. 121. s. 13. 
 
 It does not seem that the commissioners have power to 
 discharge a bankrupt, or a witness, who is improperly 
 arrested whilst attending them ; the practice being to apply 
 either by motion, or petition, to the Lord Chancellor for 
 a discharge — and, if necessary, for process against the 
 officer for a contempt. (4<) A person undertaking to in- 
 demnify the officer against conduct, which would amount 
 to a contempt, will be considered equally guilty of the con- 
 tempt himself. (5) The application for the discharge of 
 the bankrupt should be by petition^ unless the arrest is 
 under circumstances amounting to a contempt — in which 
 case it should be by motion. (6) The contempt, however, 
 is only cognizable as such by the Lord Chancellor sitting 
 in bankruptcy, and not by any other court ; therefore, the 
 Court of King's Bench refused to discharge a person ar- 
 rested whilst attending commissioners of bankrupt, as the 
 contempt was considered to be not to that court. (7) 
 
 The proof or claim by a creditor of his debt, we have 
 before seen, operates of itself as a discontinuance of any 
 
 (1) Maude V. Joweti, 3 East, 
 145. Crump v. Taylor^ 1 Pri. 74. 
 Glendinnmg v. Robinson, 1 Taunt. 
 320. 
 
 (2) 5 Geo. 2. c. SO. s. 6. 
 
 (3) Crump V. Tat/lor, supra. 
 
 (4) Ex parte Kerney, 1 Atk. S5. 
 Ex parte King, 7 Ves. 512. 
 
 (5) Ibid. Ex parte Dixon, 8 Ves. 
 104. 
 
 (6) Anon. 1 Rose, 230. 
 
 (7) Kinder V. Williams, 4T.R.S77.
 
 at the suit 
 a cre- 
 
 SeCt. 5.'\ RIGHTS AND PRIVILEGES. 543 
 
 action previously brought against the bankrupt (1) ; and if Privilege 
 
 the bankrupt is in custody at the time of such proof or ^^J^^f 
 
 claim, he is entitled to be immediately discharged. Where 
 
 also a creditor, who holds the bankrupt in arrest under ^^ 
 
 mesne process, petitions to prove his debt, the bankrupt is ditorprov 
 
 entitled to his discharge instanter upon the order for the 1?°', ^°*?' 
 '^ . ^ . tied to ira- 
 
 proof. (2) So, where a creditor (previous to the commis- mediate 
 sion) obtained a verdict against the bankrupt for a nominal discharge. 
 sum subject to a reference, and the award was made, and 
 judgment entered up for the debt and costs after the 
 issuing of the commission — upon which the creditor proved 
 his debt, and took the bankrupt in execution for the costs — 
 the bankrupt was in this case ordered to be discharged. (3) 
 
 2. Of the Batikrupfs Right to Mainte7ia7ice durifig his 
 Examination. 
 
 By section 114. of the new statute, the commissioners Only en- 
 are empowered before the choice of assignees — and, after ^^^^^^ *<* 
 assignees are chosen, they are then authorised (with the ap- he passes 
 probation of the commissioners) from time to time to make "^^ exami- 
 such allowance to the bankrupt out of his estate, until he 
 shall have passed his last examination, as shall be necessary 
 for the support of himself and his family. 
 
 This is a new and a very proper enactment in the Bank- 
 rupt law — the former statutes having contained no pro- 
 vision to this effect, — though the custom was to make the 
 bankrupt a reasonable allowance for his maintenance. For, 
 as the bankrupt is bound to employ himself previously to 
 his examination, in making up his accounts and arranging 
 his affairs for the benefit of his creditors, it seems but just, 
 that they should allow him sufficient to maintain himself 
 and his family, whilst he is devoting his time to their service. 
 
 But though the bankrupt is now entitled to such main- Not jus- 
 
 tenance, as the commissioners or the assignees shall think ^^^^^ "^ 
 
 appropri- 
 
 (1) See ante, page 184. (3) Ex parte Haynes, 1 G. & J. 
 
 (2) Ex parte frvivg, Buck, 423. 107.
 
 544 
 
 OF THE BANKRUPT S 
 
 [Ch. 13. 
 
 Mainte* 
 
 nance. 
 
 ating of his 
 own au- 
 thority 
 any part of 
 his effects 
 for that 
 purpose. 
 
 When he 
 pays \0s. 
 in the 
 pound. 
 
 When 
 12s. 6d. 
 
 When 15*. 
 
 Wlien he 
 does not 
 pay \0s. 
 
 proper to allow him, yet he will not be justified, and still 
 less any third person, in taking any part of his effects and 
 appropriating it for that purpose, without the consent of 
 the commissioners or assignees. For where a sister-in- 
 law of the bankrupt, at his request, took out of his house 
 such a quantity of his plate as would raise 20/. for the 
 maintenance of himself and family, and borrowed 20/. 
 upon it, which was actually expended for that purpose — it 
 was held, that the assignees might recover the value of it 
 in trover against the sister-in-law ; though Lord Mans- 
 field said, it was a very cruel case, — but if the assignees in- 
 sisted on their claim, that the Court could not relieve the 
 defendant. (1) The bankrupt, however, (as we have be- 
 fore seen (2),) may determine on the propriety of retaining 
 such part of his wearing apparel as he thinks is necessary 
 for his use ; for he does this at the risk of being indicted 
 for felony. (3) 
 
 3. Of the Bankrupfs Allowance under the Commission. 
 
 By section 128. of the new statute, — if the bankrupt ob- 
 tains his certificate, and the net produce of his estate pays 
 105. in the pound, he is entitled to an allowance of 5 per 
 cent, out of such produce, to be paid him by the assignees, 
 provided such allowance shall not exceed 400/. (4) 
 
 If his estate pays 12s. 6d. in the pound, he is entitled to 
 an allowance of 7/. lOs. per cent., not exceeding 500/. 
 
 And if the estate pays 155. in the pound or upwards, he 
 is then entitled to an allowance of 10 per cent., not ex- 
 ceeding 600/. 
 
 But, if the produce of his estate shall not pay the credi- 
 tors 10s. in the pound, the bankrupt can in that case only 
 be allowed so much as the assignees and commissioners 
 
 (1) Thovipsonv. Cotincell, iT.R. 
 157. 
 
 (2) Ante, .'584. 
 
 (.3) Ex parte Ross, 1 Rose, 35. 
 17 Ves. 574. 
 
 (4) These regulations are similar 
 to those in the 5 Geo. 2. c. ."0. 
 
 s. 7. & 8., except that the extent 
 of the allowance is now made 
 double the amount of what the 
 bankrupt was before entitled to. 
 The right to any allowance was 
 first given to the bank nipt, by the 
 4&.') Ann. c. 17.
 
 Sect. 5.] RIGHTS AND PRIVILEGES. 545 
 
 shall think fit, not exceeding 31. per cent., and 300^. in Allowance. 
 the whole. 
 
 Under the former statutes, it was held that the bankrupt Whether 
 was not entitled to his allowance until a ^nal dividend was ^^^{^.["j ^q 
 made ; and the reason assigned was, that the 5 G. 2. c. 30. allowance 
 s. 7. only gave him an allowance, in case the net produce of ^^ "j'^^jf 
 his estate should be sufficient to pay the creditors 105. in vidend. 
 the pound " over atid above such allowafice ;" and that, as 
 any creditor might come in and prove his debt before a 
 final dividend, it could not be ascertained till then, whether 
 the bankrupt would be entitled to any allowance at all. (1) 
 But it will be seen, that the clause in the new statute is 
 somewhat differently worded from that of the 5 G. 2. ; for 
 the words, " over and above such allowance/* seem purposely 
 omitted ; and it may, therefore, be a question now, not 
 only whether the bankrupt is not entitled to his allowance 
 before a. final dividend ; but whether, if the net produce of Quaere, 
 his estate amounts to a sum sufficient to pay his creditors ^j^j^, • ^ 
 10s. in the pound, he is not entitled to his allowance out sufficient 
 o{ that very sum, notwithstanding the produce of his estate j^j'^J 
 is only just sufficie?it to pay the creditors 105. in the pound pound. 
 — and, consequently, after the deduction of his allowance, 
 will not yield a dividend equal to that amount. 
 
 It has been said, if the bankrupt has once received his As to re- 
 allowance, he is not bound afterwards to refund any part allowance 
 of it (2) ; but there may be some doubt as to the correct- when once 
 ness of this position — for the Lord Chancellor has certainly '"^^^^^^ • 
 the power to make the bankrupt refund ; and it would de- 
 pend most probably upon the peculiar circumstances of 
 the case, whether the Chancellor would interpose his 
 authority or not. (3) 
 
 The above section, as we perceive, does not enable the Bankrupt 
 
 bankrupt to demand his allowance until he obtains his cer- !"H^'' ^^". 
 . . ... t^'" certi- 
 
 tificate ; and it would, indeed, be of no service to him if he ficate be- 
 
 (1) Ex parte Stiles and Pickart, (5) See ex parte Lanfear, 1 Robc, 
 1 Atk. 208. 442.' 
 
 (2) R%issd V. Riis-wl, I Bro. 270. 
 
 N N
 
 54-6 
 
 OF THE bankrupt's 
 
 [Ch. 13. 
 
 Allowance, 
 
 fore divi- 
 dends, to 
 claim his 
 allowance. 
 
 When 
 right to 
 allowance 
 vests. 
 
 Allowance 
 independ- 
 ant of in- 
 terest to 
 creditors. 
 
 As to al- 
 lowance 
 under a 
 second 
 commis- 
 
 Allowance 
 to part- 
 ners under 
 a joint 
 
 could — for until he is entirely cleared by his certificate, 
 every thing in his hands is liable to satisfy the claims of 
 his creditors. (1) And he must not only obtain his certi- 
 ficate before he can claim his allowance — but he must also 
 obtain it before the dividends are made, which entitle him 
 to such allowance. (2) 
 
 When the bankrupt has obtained an order of the commis- 
 sioners for his allowance, it becomes a vested interest in 
 him, and is transmissible to his representatives (3); but, 
 according to the words of the above section, the interest 
 does not actually vest in the bankrupt until a dividend is 
 declared. [A) It is not necessary, however, that the bank- 
 rupt should be alive at the time of the declaration of the 
 dividend (5), or that he should have actually obtained the 
 commissioners' order for his allowance (6); for where a 
 bankrupt died before his estate paid 10s. in the pound, the 
 Vice-Chancelloi', after that dividend had been declared, 
 ordered the assignees to pay the allowance to the bankrupt's 
 personal representative. (7) 
 
 If the bankrupt's estate pays 205. in the pound, and there 
 are creditors whose debts carry interest, they are not en- 
 titled to such interest, in diminution of the bankrupt's 
 allowance. (8) 
 
 Under a second commission the bankrupt is entitled to 
 no allowance, unless his estate pays 15s. in the pound ; for 
 a certificate under a second commission only protects his 
 person, unless every creditor receives a dividend to that, 
 amount ; and his allowance, therefore, would in that pre- 
 dicament become the property of his creditors. (9) 
 
 Partners are not entitled under a joint commission to a 
 double allowance, that is, one in respect of the joint, and 
 another in respect of the separate estate ; but only one 
 
 (1) Ex parte Grier, 1 Atk, 207. 
 
 (2) Groome v. Potts, 6 T.R. 548. 
 
 (3) Ex parte Trap, 1 Atk. 208. 
 
 (4) Ex parte Salford, sittings 
 after Trin. T. 1 826, per Vice Chan- 
 cellor. 
 
 (5) Ihid. 
 
 (6) Ex parte Calcot, 1 Atk. 209. 
 
 (7) Ex parte Salfo7-d, supra. 
 
 (8) Ex parte Morris, 1 Ves. jun. 
 132. 2Bro. 79. Bromleyv.Goodere, 
 1 Atk. 80. 
 
 (9) Ex parte Gregg, 6 Ves. 238.
 
 Sect. 5.J RIGHTS AND PRIVILEGES. 547 
 
 allowance is to be divided between them, in respect of both Allowance. 
 joint and separate effects ; and this is to be calculated ac- {.ominis- 
 cording to the proportions, which the surplus of each of sion. 
 their separate estates, after payment of their respective 
 separate debts — and the respective moieties of their joint 
 estate — may have contributed to the payment of their joint 
 debts. (1) Neither is a bankrupt under a joint commission 
 entitled to any allowance, unless both the joint and separate 
 creditors are paid 105. in the pound. (2) Notwithstanding, 
 therefore, the separate estate of the bankrupt pays 205. in 
 the pound, he cannot claim any allowance, before the joint 
 creditors are paid with the surplus 105. in the pound. (3) 
 And where a separate commission issued against one of 
 several partners, under which the separate estate paid only 
 25. in the pound, and the joint estate 185., the bankrupt 
 was, in this case, held not entitled to any allowance. (4) 
 Under a joint commission, both the separate and joint 
 estates contribute to the payment of the allowance. (5) 
 
 By the new statute, a remedy is provided for a great One part- 
 hardship, which sometimes occurred under a joint com- "er now 
 
 • • 11. ,- , 1 ,11 -r-. entitled to 
 
 mission, as to the claim ot a bankrupt s allowance. 1 or, allowance, 
 
 under the former law, it was held that one of several though the 
 
 partners was not entitled to any allowance (notwithstanding ^^^ ob- 
 
 he had obtained his certificate, and both estates had paid tained his 
 
 ccrtitic&tc 
 
 105. ,in the pound,) unless every one of the partners had 
 also obtained his certificate. (6) But now by section 129. of 
 the new statute, it is declared, that in all joint commissions, 
 under which any partner shall have obtained his certificate — 
 if a sufficient dividend shall have been paid upon the joint 
 estate, and also upon the separate estate of such partner, — 
 
 (1) Ex parte Bate, 1 Bro. 453. (5) I Madd. 70. Mr. Christian, 
 1 C. B. L. 523. however, suggests that it should be 
 
 (2) Ex parte Poivell, 1 Madd. 68. paid only out of the joint effects. 
 
 (3) Ex parte Holmes, 2 Rose, 2 Christ. B. L. 314. 
 
 95. sVes. &B. 137. (6) Ex parte Poivell, 1 Madd. 
 
 (4) Ex parte Farlow, 1 Rose, 68. Ex parte Bate, 1 Bro. 453. 
 421. 2 Ves. & B. 209. S.P. Ex 
 
 parte Terrell, Buck, 345. 
 
 N N 2
 
 548 
 
 OF THE bankrupt's 
 
 [Ch.lS 
 
 Where 
 bankrupt 
 deprived 
 of all right 
 to allow- 
 
 AUowance. such partner shall be entitled to his allowance, although his 
 ' co-partner, or co-partners, may not be entitled to any. 
 
 There are, however, certain cases of misconduct on the 
 part of the bankrupt, which will deprive him of all right to 
 any allowance, and which equally bar him from obtaining 
 his certificate. Thus, if he has lost by gaming ( 1 ) in one day 
 20/. — or 200/. within one year before his bankruptcy — or 
 200/. in one year by stock-jobbing ; — or if he has destroyed 
 or falsified any of his books or papers with intent to defraud 
 his creditors — or has concealed property to the value of 
 10/. [ — or has been privy to a fictitious debt being proved; 
 — he will in either of these cases forfeit all claim to any 
 allowance. 
 
 Assignees 
 required 
 to account 
 to bank- 
 rupt for 
 surplus. 
 
 But cre- 
 ditors first 
 entitled to 
 interest. 
 
 4. Of the Banhiipt^s Right to the Surphis. 
 
 By section 132. (2) of the new statute, the assignees are 
 required, upon request made to them by the bankrupt, to 
 declare to him how they have disposed of his real and 
 personal estate, and to pay the surplus, if any, to him or 
 his personal representatives. And if the creditors, who 
 have proved under the commission, shall be fully paid, the 
 bankrupt will be entitled to recover the remainder of the 
 debts due to him. 
 
 The expenses of working the commission are, of course, 
 to be first refunded to the assignees out of the bankrupt's 
 estate, before the surplus is restored to him. (3) And the 
 assignees, also, are now restricted from paying such sur- 
 plus, until all the creditors who have proved shall have 
 received interest upon their debts, to be calculated at the 
 rate, and in the order, specified in the act (4); this pro- 
 vision differing from the former rule, which allowed interest 
 to the creditors only when there was a contract^ either ex- 
 
 (1) Section 130. 
 
 (2) This clause is substituted for 
 the5Eliz. c. 13. S.4. iJac. l.c.15. 
 s. 15. 
 
 (3) Ex parte Dew, cit. 2 Ves. jun. 
 301. ; and see Bromley v. Goodercy 
 supra. 
 
 (4) See ante, page 271.
 
 Sect. 5.] RIGHTS AND PRIVILEGES. ^*^ 
 
 pressed or implied, to pay it. (1) And though creditors ^^rplus. 
 may have signed receipts in full, upon a payment of 205. in 
 the pound, under the idea that there would be no surplus, 
 they are nevertheless still entitled to interest before the 
 bankrupt can claim the surplus. (2) 
 
 A bankrupt pending a commission has a right to an in- Bankrupt 
 spection of the accounts of his assignees, in respect to nis j.^^^.^ ^nd 
 interest in the surplus; and the Lord Chancellor will, impeach 
 upon petition, rectify palpable errors pointed out by the j^^^^, .^^_ 
 bankrupt. But where the bankrupt has to a certain degree counts. 
 an intercourse with the estate during the commission, he 
 will not afterwards, in the Master's office, be permitted to 
 surcharge and falsify accounts as to dividends paid, which 
 Iiave been settled by the commissioners in the administration 
 of the bankruptcy. (3) 
 
 If the bankrupt is dead, and there is real and personal When 
 estate more than sufficient to pay the debts with interest, j^^jead 
 the surplus real estate must be conveyed to his heir (if he surplus 
 died intestate), and his personal estate be divided amongst (4) ^^g^j^gj). 
 his next of kin. But if he leaves a will, then the surplus and next 
 of both estates will be subject to the dispositions contained , , ' """ 
 in it, notwithstanding the will was made previous to Ins leaves a 
 bankruptcy ; for neither the bankruptcy, nor the bargain ^^^^^• 
 and sale by the commissioners, will operate as a revo- 
 cation ; the Bankrupt law taking the property out of the 
 bankrupt only, for the purpose of paying his creditors ; 
 and from the moment that the debts are paid, the as- 
 signees become mere trustees for the bankrupt — and can 
 be called upon to convey to him. (5) 
 
 (l) Bromley v. Goodcre, 1 Atk. by Sir William Evans in the 4th 
 
 75. Ex parte Rooke, ibid. 244. Ex vol. of his edition of the Statutes, 
 
 parte Chamjnon, 3]ivo. 4d6. Ex pages. Ev. B. L. 22. note 10. 
 
 parte Hankey, ibid. 504. Ex parte (.2) Ex parte Deey, 1 Ball & B. 
 
 Mills, 2 Ves. jun. 295. Ex parte 77. 
 
 Coc^5, 1 Rose, 517. iVes. &B. 342. (3) Twogood w Swrnisfon, ayca. 
 
 Ex parte Williams, ibid. 599. The 485.; and sec 18 Vcs. 81. 
 
 justice of this recent alteration of (4) Bromley v. Goodere, 1 Atk. 
 
 the rule as to the allowance of in- 81. 
 
 terest, was long ago pointed out (5) Charman v. Ckarman, 1 4\cs, 
 
 by Mr. Christian, vol. ii. 504., and 580. 
 
 N N 3
 
 550 OF THE pankrupt's [Ch. 13. 
 
 Surplus. Where part of a bankrupt's property consisted of real 
 
 . , estate, j)^^t of which was sold by the assignees during his 
 
 rights of life — another •part contracted to h*e sold at the time of his 
 
 the heir, j]eath — and the remainder was sold after his death ; — it was 
 and exe- 
 cutor, of determined in a question between his real and personal re- 
 
 the bank- presentatives, as to their rights to the surplus, that the 
 surplus, heir at law had no claim in respect of the estate which was 
 
 when part ^^^^ qj. contracted to be sold, during the life of the bank- 
 
 of rcm cs- 
 
 tate sold, rupt ; for that jiart of the estate was to be considered as 
 
 converted into personalty : but that as to such portion 
 of the real estate as was unsold, and uncontracted for at 
 the death of the bankrupt, — that was held to descend 
 to the heir, subject to the charge created by the Bankrupt 
 law, for the payment of his debts. And the Court said, 
 that it could make no difference in principle, whether 
 such a charge were created by the provision of the law, 
 or by the provision of the party; that, as far as the real 
 estate was not exhausted by the charge, it was the property 
 of the heir: that the bankrupt law had no purpose to 
 alter the character of surplus property between the real 
 and personal representatives of a bankrupt : and that, as 
 to the charge for payment of debts created by bankruptcy 
 upon the real estate of a deceased bankrupt, his personal 
 estate is to be considered as first applicable ; and that the 
 heir M'as entitled in the first place to be indemnified out of 
 the surplus, to the extent in which it should ultimately 
 appear, that the real estate was not required for the pay- 
 ment of debts. (1) 
 When two "Where a man is a partner in two separate firms, each 
 firms, in ^£ vvhich becomes bankrupt, the surplus of his separate 
 bankrupt estate must be applied in discharging the joint debts of the 
 IS a. part- ^^^ firms, in proportion to the whole amount of the debts 
 come proved against each firm (2) respectively. And, generally, 
 
 bankrupt, jj^ ^ases of partnership) the bankrupt's right to the surplus 
 
 (1) J9an/« V. 5co<i, 5Madd.493. L. 355. Ex parte Barron, ibid. 
 
 (2) Ex parte Franklyn, Buck, "54. 
 332. Ex parte Brncc, Whitm, B.
 
 Sect. 5.] RIGHTS AND PRIVILEGES. 551 
 
 will depend, as to the amount, upon the result of the ac- Surpltu. 
 
 count between the partners. (1) Thus, where the bank- ^ 
 
 . . . One part- 
 
 rupt had, under a separate commission, obtained an order ^^^ gn- 
 
 for payment of the surplus to him, which was accordingly titled to 
 
 paid, — it was determined, that his partner was entitled to tionof the 
 
 apply by petition in the bankruptcy for an account of such surplus 
 
 surplus, and for payment of his proportion of it; and i^y i,;^ (.(,- 
 
 that the Court had jurisdiction to make an order to that partner. 
 
 effect. (2) 
 
 5. As to the Right of an uncertificated BanJcncpt to acquire 
 and retain Property. 
 
 A bankrupt is not actually divested of his property until Property 
 the commissioners' assignment. (3) And, although property ^j by 'the 
 subsequently acquired by a bankrupt before he obtains his assignees, 
 certificate, is liable to be taken from him by his assignees, ^.^ j. \ 
 if they choose to claim it — ail such property in fact pass- claim 
 ■ing to them by the assignment of the commissioners (4), — nU other 
 yet it does not absolutely vest in them ; and if they make no persons, 
 claim to it, the bankrupt has a right to such property, as 
 against all other persons. (5) Thus, where an uncertificated 
 bankrupt assigned after-acquired property, in trust, for a 
 valuable consideration — and a creditor of the bankrupt 
 seized it in execution, — it was held, that the trustee might 
 recover it in trover from the creditor. (6) 
 
 Lord Kenyon, indeed, has upon more than one occa- As to pro- 
 sion (7) expressed an opinion, that the rights of the as- l^ujreifbv 
 signees do not extend to property, which the bankrupt personal 
 acquires " as the fruits of his personal labour " but there f . ""^ 
 seems to be no sound reason for this distinction at law ; 
 for, though the assignees (as Lord Mansfield said) (8) 
 
 (1 ) Ibid. ; and see ex parte Lan- 293. 2 Dow. & R. SoA. ; and see 
 fear, 1 Rose, 442. Ex parte King, post, title " Actions." 
 
 17 Vcs. 115. Ex parte Taylor, {6) Larochev. Witkinson,Pcake, 
 
 2 Rose, 175. 140. 
 
 (2) Ex parte Lanfear, supra. (7) Evans v. Brown, 1 Esp. 70. 
 (5) 2 Co. Rep. 26 a. Webb v. Ward, 7 T.R. 296. 
 
 (4) See ante, 383. (8) Chij^pendale v. Tomlinson, 
 
 (5) Draijton v, Dale, 2 B, & C. 1 C. B. L. 431 . 
 
 N N 4<
 
 552 
 
 OF THE BANKRUPT. 
 
 [Ch.13. 
 
 As to ac- 
 quiring 
 property. 
 
 Creditors, 
 not being 
 assignees, 
 have no 
 right to 
 take after- 
 acquired 
 property. 
 
 cannot let out the bankrupt for profit, or contract for his 
 labour, — yet when he has realized property, notwithstanding 
 it may be the produce of his labour, or the fruits of his 
 knowledge or his skill, and it would be in many cases cruel 
 and unjust in the assignees to deprive him of it — still, it is 
 apprehended, (according to the principle of the bankrupt 
 law), they would have a strict right to claim it — as in the 
 case (which has been before noticed) ( 1 ) of a patent for an 
 invention obtained by him before his certificate. For every 
 species o^ property acquired by a bankrupt before his certi- 
 ficate (no matter how obtained) is a sort of defeasible pro- 
 perty, which his assignees — though none but his assignees 
 are able to defeat. (2) 
 
 Creditors of a bankrupt, therefore, who are not assignees, 
 have no property in goods acquired by him after his bank- 
 ruptcy ; — if they take them they are trespassers — if they 
 are stolen from the bankrupt, they may be alleged (in an 
 indictment for the felony) to be his property — if he sells 
 them, he may receive the money for them — and if he 
 pawns them, he may redeem them, on tendering the money 
 for which they were pledged. (3) 
 
 Section VI. 
 
 Of Actions at Law, and other Proceedings, by and against 
 an uncertificated Bankrupt. 
 
 (And see post, " Certificate.") 
 
 If bank- Notwithstanding a man is declared a bankrupt under a 
 
 rupt not commission issued against him, and his estate and effects 
 a com- 3,re assigned to assignees, yet he is not hound by the ad- 
 
 (1) Hesse V. Stevenson, 1 B.&P. (3) Webb v. Fox, 7 T.R. 591. 
 565.; ajite, 389. per Grose J.; and see post, " Ac- 
 
 (2) Fowler V. Down, 1 Bos. & P. tions." 
 44. per Heath J.
 
 Sect. 6.] OF THE BANKRUPT. 553 
 
 judication of the commissioners; and if he be really not Actions. 
 
 liable to a commission of bankruptcy, or is improperly ad- mission, 
 
 judged one, he may maintain an action of trespass against may bring 
 
 his assignees. (1) And where a bankrupt was required by trover 
 
 his assignees, on his last examination, to deliver to them his against his 
 
 books of account, which he did — and it was afterwards ^^^ ^ 
 
 found that he was not a trader, and that the commission 
 
 had improperly issued, — it was held, that he might support 
 
 an action of trover for the books against the assignees. (2) 
 
 But when such an action is brought for some alleged 
 
 irj-egularity in the proceedings, or without any great merits 
 
 on the part of the bankrupt, the Lord Chancellor will not 
 
 make an order for the bankrupt to inspect the proceedings, 
 
 to enable him to find out the infirmities of the commission, 
 
 if any should exist. (3) 
 
 If a bankrupt, also, has done any act amounting to an ac- When 
 
 . , . . , . \ ° . bankrupt 
 
 quiescence in the commission, he is then estopped from suing estopped 
 
 his assignees. Therefore, where he goes to the different from 
 
 ,. T . , ^ . , bringing 
 
 creditors, to solicit them to vote tor particular persons as j^ action. 
 
 assignees (4) ; or where he takes a part in the sale of his 
 own effects under the commission (5); or obtains his dis- 
 charge out of custody in an action by a judge's order, on 
 the ground of his bankruptcy (6) ; — he will not, in either of 
 these cases, be allowed afterwards to question the com- 
 mission in an action against his assignees. So, where in 
 an action by the bankrupt against the petitioning creditor 
 to try the validity of the commission, it was proved, that 
 the bankrupt and petitioning creditor attended the second 
 meeting of the commissioners, and discussed before them 
 the debt due to the petitioning creditor, and produced 
 their accounts — and that the bankrupt objected to jiart of 
 the petitioning creditor's account, whereupon the com- 
 
 (1) Perkin v. Prcctor, 2 Wils. (4) Like \. Howe, 6 Esp. 20. 
 382. J and see ante, Ch. 5. s. 6. (5) Clarke v. Clarke, ibid. 61. 
 
 (2) Summersettv.Jm-visjGMoore, (6) Goldiev. Gunston, 4 Camp. 
 56. 3 B. & B. 2. 581. Watso7i v. Wace, 2 Carr. P. 
 
 (3) Ex parte Vaughan, 14 Ves. 17). 
 515.
 
 554> 
 
 OF THE BANKRUPT. 
 
 [Ch.13. 
 
 Actions. 
 
 What is 
 not an 
 estoppel. 
 
 missioners ticked off such items in it as they allowed, and 
 struck a balance of 169/.; — this was held to be evidence 
 (to be left to the jury) of an implied admission by the bank- 
 rupt, from his conduct and demeanor before the com- 
 missioners, that such a balance was due. (1) So a bankrupt 
 will be restrained, after laying by for a long period — or 
 after having already repeatedly questioned the commission, 
 from further disputing it at law. (2) Therefore, where, after 
 a petition presented by a bankrupt for a supersedeas, he 
 abandoned the petition, and joined in a conveyance of 
 part of his property, and solicited and procured also the 
 requisite signatures to his certificate, — he was restrained 
 from proceeding in an action (against the messenger) to 
 impeach the commission. (3) And where, at the in- 
 stigation of the petitioning creditor and another creditor, 
 a bankrupt brought an ejectment to recover the possession 
 of premises sold under a commission (under which he 
 had acquiesced for seven years), — an injunction was 
 granted, on the petition of the assignees, to restrain him 
 from proceeding in it. (4) But the mere surrender by 
 the bankrupt to the commission is not an estoppel to 
 his right to dispute it at law ; even though he presents 
 a petition to enlarge the time for his surrender, in which 
 he states that he has been didy declared a bankrupt. (5) 
 Neither is a bankrupt estopped from controverting the 
 validity of the commission in an action against a stranger, 
 notwithstanding he has even obtained his certificate under 
 it ; for in order to create an estoppel, there must be reci- 
 procity between the parties; and a stranger can neither 
 take advantage of, nor be bound by, an estoppel. (6) And 
 even in such an action against his assignees, an injunction 
 will not be granted by the Court of Chancery to restrain 
 him from proceeding in it, merely on the ground, that he 
 
 (1) Jarrett v. Leonard, 2 M. & S. 
 265. 
 
 (2) 18 Ves. 393. 
 
 (5) Ex parte Cutten, 1 G. & J. 
 
 (4) Ex parte Grant, Buck, 90. 
 
 (5) Mercer v. Wise, 3 Esp. 216. 
 
 (6) Butts V. Bilkc, 4 Pri. 240. 
 7 East, 352 b. 
 
 31'
 
 Sect. G.] OF THE BANKRUPT. $S3 
 
 has obtained his certificate, — without alleging also, that the Actions. 
 
 commission was valid, and that the action was brought with 
 
 a view only to harass the assignees. (1) 
 
 A bankrupt, however, will not be permitted to try the Bankrupt 
 
 validity of his commission, by actions against the debtors "^L'!^7 
 
 to his estate. Therefore, where a bankrupt, who insisted sue his 
 
 that his commission was invalid, gave one of his debtors f^*^",'"*' to 
 
 notice not to pay his assignees, and brought an action for the validity of 
 
 recovery of the debt — and the assignees also threatened ^.^'"■^is- 
 
 sion 
 to do the same, — a bill of interpleader by the debtor was 
 
 entertained ; and upon the usual affidavit, and payment of 
 
 money into Court, an injunction was granted. (2) 
 
 As a bankrupt, though uncertificated, can acquire and May sue 
 
 hold property against every one except his assignees, so amuired 
 
 he can maintain an action of assumpsit against a third property, 
 
 person for his own work and labour performed since the ^ ^^j 
 \ . , '^ signees do 
 
 issuing of the commission, and for materials furnished not inter- 
 necessary to his labour. (3) And where no claim is made P°^^' 
 by the assignees, he may also maintain trover for goods 
 Acquired after his bankruptcy (4') ; and even assicmjmt for 
 money lent and advanced by him after his bankruptcy (5) ; 
 as well as trespass quare clausum f regit, for a trespass (6) 
 committed before his bankruptcy ; for the defendant in any 
 of these actions cannot object to the bankrupt's claim, un- 
 less his assignees interpose — and the bankrupt may, in fact, 
 sue as a trustee for the assignees. (7) 
 
 But an uncertificated bankrupt cannot bring trespass But can- 
 against a defendant for seizing his furniture, who acted by "°*^ ^"^ ^ 
 mdJiority of the assignees, notwithstanding the assignees \na by au- 
 
 (1) Kirkpatrickv.Dennet, 1 Sim. (4) Fotvlcr v. Dotvn, 1 Bos.&P. 
 & S. 408, 1 G. & J. 300. 44. Larochc v. Wakeman, Peake, 
 
 (2) Lowndes v. Comford, 1 Rose, 140. Webb v. Ward, 7 T. R. 296. 
 180, 18 Ves. 299. Harloiuv. Croiv- Webb v. Fox, 7 T, R, 591. 
 
 let/, in Exchequer, Buck, 273. con- (5) Eva7is v. Brown, 1 Esp. 170, 
 
 tra. (6) Clarke v. Calvert, 5 Moore, 
 
 (5) Chippendale v. Tomlinson, 96, 
 
 1 C. B. L, 4.>1. Silk V, Osborne, (7) Cumming\. Roebuck, 1 Holt, 
 
 2 Esp. 140. 172. Clarke v. Calvert, supra.
 
 556 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Actions. 
 
 thority of 
 assignees. 
 
 Or one 
 
 who ob- 
 tains a sur- 
 render of 
 their in- 
 terest. 
 
 When 
 bankrupt 
 may sue 
 assignees 
 for work 
 and labour. 
 
 When he 
 may sue a 
 creditor 
 who re- 
 
 had agreed with a friend of the bankrupt, for a valuable 
 consideration, to leave such furniture in the bankrupt's 
 possession ; — for an uncertificated bankrupt is not entitled 
 to retain any property against his assignees. (1) So, where 
 an uncertificated bankrupt sued a creditor (who had be- 
 come such since his bankruptcy) for seizing his effects sub- 
 sequently acquired — and the creditor, after a rule to 
 plead, obtained a surrender of the interest of the assignees 
 in the effects seized; — it was held, that this was a rati- 
 fication of the seizure by the assignees, and that the bank- 
 rupt could not recover. (2) And where a bankrupt before 
 obtaining his certificate, brought an action upon a pro- 
 missory note, and for money lent, — a plea that the plaintiff 
 was an uncertificated bankrupt, and that his assignees 
 " required the defendant to pay to them" the money claimed 
 by the plaintiff, was held good; — and a replication, that 
 the causes of action accrued after the plaintiff became 
 bankrupt, and that the defendant treated with the plaintiff 
 as a person capable of receiving credit, and that the com- 
 missioners had made no new assignment of the said note 
 and money, was held bad — upon the established prin- 
 ciple, that the general assignment of the commissioners 
 passes to the assignees all his after acquired, as well as 
 present, property and debts. (3) 
 
 Where the assignees employ the bankrupt in carrying 
 on his trade or manufacture for the benefit of the estate,. 
 and pay him money from time to time, it is evidence of 
 such a contract between him and the assignees, as will 
 enable him to recover from them a reasonable compens- 
 ation for his work and labour. (4) 
 
 In a case where the creditors of a bankrupt entered into 
 a deed of composition to receive 8s. in the pound, in full 
 discharge of their debts, and agreed to release every thing 
 
 (1) Nias V. Adamson, 3 B. & A. (3) Kitchen v. Bartsch, 7 East, 
 225. 53. 
 
 (2) Hull V. Picker sgUl, iB.&B. (4) Coles v. Barrow, 4 Taunt. 
 282. 3 Moore, 612. 754.
 
 Sect. 6.] OF THE BANKRUPT. 557 
 
 beyond that to the bankrupt, and join in a petition to the Actions. 
 
 Chancellor to supersede the commission — and one of the ~ T,, 
 ^ _ _ ceivcs lull 
 
 creditors, having two distinct debts due from the bankrupt value on a 
 
 (for one of which he held bills for the full amount), re- bill, after 
 
 .... . , receiving a 
 
 ceived his dividend of Ss. in the pound on both debts — composi- 
 
 and then recovered the full value of some of the bills ; — it •^'°"- 
 
 was held that the bankrupt, under these circumstances, 
 
 was entitled to recover the money so obtained on the bills, in 
 
 an action for money had and received. ( 1 ) 
 
 As a debt due to a bankrupt, as trustee for another, does Bankrupt 
 not pass under the commissioners' assignment, — it has assicrninrr a 
 been held, that a bankrupt, who previous to his bank- Jebt, may 
 ruptcy assigned a debt then owing to him, (and who be- trustee, 
 came, therefore, in the nature of a trustee for the person to 
 whom the debt was assigned) might sue the debtor in his 
 own name for the benefit of the assignee of the debt. (2) 
 
 A bankrupt is personally liable for the costs of an action When 
 commenced by him, and proceeded in by the assignees jj^i^jg ^^^ 
 in his name, notwithstanding he has obtained his cer- costs. 
 tificate. And, though the Court of Chancery will protect 
 him from such costs, when he acts fairly, — yet where 
 he induces the assignees to pursue the action by mis- 
 representation, he will not be relieved. (3) Where he When re- 
 sues as trustee for his assignees, and for their benefit, and qy'ired to 
 not for the fruits of his own personal labour, he has been ciirity. 
 required to give security for costs, (-l) And the Court of 
 Common Pleas, upon one occasion of this kind, refused to 
 grant a new trial, unless the assignees would abide by the 
 verdict, and become responsible for the costs. (5) So, When 
 where an uncertificated bankrupt (after being nonsuited in j^'^s'^^jif 
 an action of trespass for false imprisonment in the Court be stayed 
 of King's Bench, on the ground of not being prepared J,^;,^^^*^ 
 with evidence to prove the validity of a former commission) 
 
 paid. 
 
 (1) Stock V. Mawson, 1 B. & P. (s) Ex parte Seaman, 1 G. & J. 
 286. 260. 
 
 (2) Winch V. Kceley, 1 T. R. 6 1 9. (4) Webb v. Ward, 7 T. R. 296. 
 
 (5) Noble V. Adams, 7 Taunt. 89.
 
 558 
 
 OF THE BANKRUPT. 
 
 [Ch.l3. 
 
 Actions. 
 
 When 
 
 action 
 
 brought 
 
 against 
 
 bankrupt 
 
 for debt 
 
 proved. 
 
 When 
 bankrupt 
 indicted, 
 where 
 venue 
 may be 
 laid. 
 
 As to evi- 
 dence. 
 
 What is 
 not a va- 
 riance. 
 
 brought a fresh action in the Common Pleas, — the last 
 mentioned Court ordered the proceedings to be stayed, 
 until he paid the costs of the former action ; as he ought 
 to have been prepared with such evidence on the first 
 trial." (1) But in another case, where a joint action was 
 brought by two persons, one of whom was a bankrupt, 
 and the other a prisoner in Newgate, the same Court re- 
 fused to require such security; though the judgment of the 
 Court, in this case, seems to proceed upon the consider- 
 ation of the circumstance of the imprisonment of one of the 
 plaintiffs (2), and not of the bankrnpfcT/ of the other. 
 
 Where an action is brought against a bankrupt for the 
 same debt, which a creditor has proved under the commis- 
 sion, the proof cannot be pleaded in bar — but the bankrupt 
 may either apply to the Lord Chancellor to expunge the 
 debt, or move the Court in which the action is brought to 
 stay proceedings. (3) In assumpsit against two defend- 
 ants, where one pleaded tioii assinnpsit and bankruptcy, 
 and the plantifF entered a nolle prosequi as to him, as to the 
 several matters pleaded by him — and the other defendant 
 pleaded non assumpsit; — the latter was held not discharged 
 by the Jiolle prosequi. (4) 
 
 On an indictment against a bankrupt for concealing his 
 effects, the venue may be laid in any county, where the 
 prosecutor can prove an actual concealment. (5) And, on 
 the trial of such an indictment, a book delivered up at his 
 last examination with other papers, on his signing a de- 
 claration that fhei/ contained a full and true disclosure and 
 discovery of all his estate and effects, was held necessary 
 to be produced as part of the prosecutor's case. (6) 
 Where, upon an indictment of a bankrupt for perjury 
 (alleged to have been committed in an affidavit sworn be- 
 
 (1) Craivley v- Impey, 8 Taunt. 
 407. 2 Moore, 460. 
 
 (2) Anon. 2 Taunt. 61. 
 
 (5) Harley v. Grecmvood, 5 B. 
 & A. 95. J and see ante, "Elec- 
 tion," 189. 
 
 (4) Moravia v. Hunter, 2 M. & 
 S. 444. Noke V. Ingham, 1 Wils. 
 89. 
 
 (3) Rex V. Evans, 1 Russ. & R. 
 70. 
 
 (6) Ibid.
 
 Sect. 7.] OF THE BANKRUPT. 559 
 
 fore a commissioner of the Court of Chancery), it was Actions. 
 alleged that the detendant preferred his petition to the 
 Lord Chancellor, setting forth various matters, and stating 
 that " at the several meetings before the commission" the 
 defendant declared openly to a certain effect — and upon the 
 trial it appeared, that the statement of the petition was, 
 that " at the several meetings before the commissiojicrs" 
 the defendant declared to that effect ; — it was held, that 
 this was no variance, inasmuch as it was sufficient to set 
 out in the indictment the petition in substance and effect; 
 and that the word " commission" also was one of equivocal 
 meaning, being used to denote, either the tiiist cw authority 
 exercised, or the ^person by whom it is exercised; and that 
 on this occasion it sufficiently appeared, from the context 
 of the petition as set forth in the indictment, that it was 
 used only in the latter sense. (1) 
 
 Section VII. 
 
 nees. 
 
 Of Suits i?i Equity hy and against an uncertijicated 
 Bankrupt. 
 
 Though an uncertificated bankrupt cannot, generally Where 
 speaking, bring a bill in equity (2) ; yet where he has a bankrupt 
 clear interest and the assignees refuse to sue, the Lord in name of 
 Chancellor will, upon petition, compel them (upon an offer his assig- 
 of indemnity) to let him use their names (3) ; for his dis- 
 ability in general cases to sue is not to be acted upon, to the 
 effect of gross injustice. (4) 
 
 (1) Rex V. Dudvian, 4B. & C. ferently in Lord Redesdale's Trea- 
 850. tise on Pleading, where it is laid 
 
 (2) Hammond v. Attwood, 3 Mad. down, that a bankrupt may sue in 
 1 58. ; and see Bowser v. Hughes, equity, if he disputes the validity 
 1 Anst. 101. of the commission, provided he 
 
 (3) Sprasg V. Binkes, 5 Ves. 587. brings the assignees before the 
 
 (4) Per Lord Eidon, Benfield v. Court by supplemental bill. Mit- 
 Solomons, 9 Ves. 77. The practice, ford on Pleading, 52. 
 however, is stated somewhat dif-
 
 560 
 
 OF THE BANKRUPT. 
 
 [Ch. 13. 
 
 Suits in 
 equity. 
 
 Where 
 demurrer 
 allowed, 
 for want 
 of neces- 
 sary alle- 
 gations. 
 Where, 
 on the 
 ground of 
 the proper 
 proceeding 
 being by 
 petition. 
 
 Where a 
 bill re- 
 tained. 
 
 Where 
 bankrupt's 
 suit en- 
 tertained, 
 notwith- 
 standins 
 
 But, where a bankrupt filed a bill against a mortgagee 
 of estates in England and Berbice, for an account and 
 payment of the balance to his assignees — and he made 
 his assignees defendants, charging collusion between them 
 and the other defendants, but did not aver that there 
 would be a surplus, nor charge a direct application to his 
 assignees to sue ; — a demurrer was allowed for want of such 
 allegations. (1) And, where a bill was filed by a bankrupt 
 (who had taken the benefit of an insolvent debtor's act) 
 and his assignees under that act, against the assignees 
 under his commission and others, stating improper con- 
 duct and collusion, and that all or most of the creditors 
 under the commission were satisfied, and praying an ac- 
 count, — a demurrer in this case was also allowed, on the 
 ground that the proper mode of proceeding was by peti- 
 tion in bankruptcy. (2) So, where a bankrupt filed a bill 
 against a debtor to his estate, asserting the invalidity of 
 the commission, and charging collusion between his as- 
 signees and the debtor — a demurrer was likewise allowed, 
 the proper course being, either to try in an action the 
 validity of the commission, or to petition to remove the 
 assignees. (3) 
 
 Where a bill, however, was filed by an uncertificated 
 bankrupt in the Exchequer — though the assignees were 
 not before the Court — yet it being admitted, that the as- 
 signees had already failed in an ejectment brought by them 
 to recover the premises in question, by not being able 
 to prove the petitioning creditor's death, — the Court re~ 
 tained the bill, until proper parties should be added 
 (if necessary), the plaintiff paying the costs of the day. (4) 
 And where a bankrupt filed a bill against a creditor 
 (who was prosecuting an action at law against him) without 
 making his assignees parties to the suit, and stated in his 
 
 (1) Benfield \. Solomons, 9 Ves. (5) Haynviondv. Atttvood, sMad. 
 77. 158. 
 
 (2) Saxton V. Davis, 1 Rose, 79. (4) Gvvett v. Armitage, 2 Anstr. 
 18 Ves. 72. 412.
 
 Sect, v.] OF THE BANKRUPT. 561 
 
 bill, that if the accounts were taken between him and the Suits in 
 
 creditors, a balance would be found due to him ; and the ^'^ "' ^' 
 
 bill also prayed a discovery as well as an account, and pica of 
 
 payment of the balance with the usual submission, and "''"f^" 
 
 ... . ruptcy. 
 
 also an injunction and general relief; — a plea ofbanki'uptcy 
 
 was overruled by the Vice-Chancellor — though bethought 
 the bill went too far, to pray that the balance of the ac- 
 count might be paid to the plaintifF(l); and this decision 
 was afterwards affirmed upon appeal. (2) 
 
 A bankrupt will be permitted to prosecute a petition, when 
 impeaching the debt on which the commission issued, in bankrupt 
 forma jpauperis (provided a proper case is shown), upon a t^'Ji^jf ;' 
 certificate of counsel, that the petitioner had just cause to forma 
 be relieved, and an affidavit that he was not worth 5/. (3) V^n^er%s. 
 
 Upon the same principle, also, as that which incapaci- Bankrupt 
 tates a bankrupt from being a 'plaintiff in a suit, he is in i» general 
 general protected from being sued in equity as a defendant. ^^^^ \^ 
 Thus, where a bankrupt had mortgaged a copyhold estate, equity. 
 but no bargain and sale was made to his assignees, and the 
 mortgagee filed a bill against the bankrupt and liis as- 
 signees to redeem, — a demurrer by the bankrupt was al- 
 lowed, as he was not a necessary party to the bill. (4) 
 
 So, the bankrupt cannot be joined as a defendant, in a 
 suit against his assignees for the purpose o^ relief .[5) But Except 
 it seems, if any discover^! is sought of his acts before he !'^„ ^ 
 became bankrupt, he may be compelled to answer to that a dis- 
 part of the bill, for the sake of discovery, and to assist the ^^overy. 
 plaintiff in obtaining proof; though, at the same time, his 
 answer cannot be read against his assignees. (6) Therefore, 
 where a bill was filed against a bankrupt and his assignees, 
 
 (1) Lowndes v. Taylor, 2 Rose, (5) Griffin v. Archer, 2Anst.478. 
 365. 1 Mad. 425. Whitworth v. Davis, 1 V.&B. 545.; 
 
 (2) 2 Rose, 432. and see Bailey v. Vincent, 5 Mad. 
 (5) Ex parte Northam, 2 Ves. & 48. 18 Ves. 72. 
 
 B. 124, (6) Mitford on Pleading, 142.; 
 
 (4) Lloyd V. Lander, 5 Mad. and see Glassford v. Jeffery, cit. 
 282. 1 Ves. & B. 549. 
 
 o o
 
 569 OF THE BANKUUPT. [Ch. 13. 
 
 Suits in charging a fraudulent bankruptcy, for the purpose of de- 
 * jMj£^ feating the plaintiff's execution, as well as other circum- 
 stances of fraud, and praying a discovery and injunction, — a 
 demurrer by the bankrupt was overruled. (1) 
 
 (1) King V. Martin, 2 Ves. jun. 641.; and see post, Chap. 18. s. I. 
 
 'Xy^ Yi 
 
 a
 
 565 
 
 CHAP. XIV. 
 
 OF THE CERTIFICATE. 
 
 Sect. 1 . Of the Signature of the Creditors. 
 
 2. Of the Signature of the Commissioners. 
 
 3. Of the Allowance hy the Lord Chancellor ; and 
 
 herein of opposi7ig the Allowance, and recalling 
 the Certificate after Allowance. 
 
 4. Of the Practice on Petitions to stay the Certificate. 
 
 5. When the Certificate is void. 
 
 6. Effect of the Certificate. 
 
 7. Of pleading the Certificate ; and herein of the 
 
 Evidence to support it, or defeat it. 
 
 8. Of discharging a certificated Bankrupt. 
 
 9. Of the Bankrupt's Liability on a new Promise. 
 
 Section I. 
 Of the Signature of the Creditors. 
 
 By section 122. of the new statute, it is directed that the 
 certificate ( 1 ) shall be signed hy four fifths {2) in number 
 and value of the creditors, who have proved debts to the 
 
 (l) The 4 & 5 Ann. c. 17. s. 19. (2) This is the same proportion 
 
 was the first statute that gave to as that specified in the 5 G. 2. 
 
 the bankrupt the benefit of a cer- c. 30. s. 10. which was altered by 
 
 tificate of conformity; but the the 49 G. 5. c. 121. s. 18. to the 
 
 power of granting it was vested in proportion of three-fifths ; an al- 
 
 the commissioners alone ; the teration, which, without any quali- 
 
 5 Ann. c. 22. afterwards required fication as to the period of applying 
 
 the consent of the creditors. The for the certificate, was productive 
 
 SG. 1. c. 24. s. 16. incorporated in its ciFects of much more evil 
 
 both these requisites, which were than of benefit, increasing both the 
 
 subsequentlyincludedin the .5G.2. number of fraudulent bankrupts 
 
 c. 30. s. 10. and defrauded creditors. 
 
 o o 2
 
 564 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Signature 
 by cre- 
 ditors. 
 
 Where 
 creditor 
 may sign 
 by power 
 of attor- 
 ney. 
 
 Creditors 
 required 
 to add the 
 date of 
 their sig- 
 natures. 
 
 amount of 20/. or upwards. But after six calendar months 
 from the last examination of the bankrupt, it may then be 
 signed either by thrcc-Jifths in number and value of such 
 creditors, or by nine-fenths (1) in nwnber only. If there 
 happens to be a fraction in calculating the number of 
 creditors, whose signatures are requisite, it seems that an 
 additional creditor must sign in respect of that fraction. 
 Thus, if seventeen creditors have proved ; — as three-fifths 
 of seventeen are equal to ten and one-fifth, and as ten would 
 be less than three-fifths, though eleven is something more, 
 yet eleven must sign; and so, in like manner, of every 
 other number not exactly divisible. (2) 
 
 If a creditor lives remote, or abroad, he may authorize 
 any other person by letter of attorney to sign the certifi- 
 cate on his behalf; but the authority of the creditor in the 
 latter case must be attested by a notary public, British 
 minister, or consul ; and every such authority and attest- 
 ation (S) must be laid before the Lord Chancellor, previous 
 to the allowance of the certificate. 
 
 By a general order of Lord Eldon (4), the creditors are 
 directed, at the time of signing the certificate to write 
 opposite their respective names the day of the month and 
 year on which they sign; and in all affidavits of their 
 signatures, such day must be expressly stated. This 
 order, however, is not so strict as not to be occasionally 
 dispensed with, in a case of inadvertence satisfactorily 
 explained to the Lord Chancellor. Thus, where a certi- 
 ficate was opposed, on the ground that some of the cre- 
 ditors (who had signed it) had not subscribed opposite 
 
 (l) A new provision was intro- 
 duced in the very short lived act 
 of the 5 G. 4. c. 98. s. 120. by 
 which, where there was only one 
 opposing creditor, whose debt was 
 of such an amount as to stop the 
 certificate, the Lord Chancellor 
 might, upon petition, allow it not- 
 withstanding such opposition. This 
 enactment, however, was disap- 
 
 proved of by Lord Eldon, when it 
 came into practical operation; in 
 consequence of which, it seems to 
 be purposely omitted in the pro- 
 visions of the present statute. 
 
 (2) 1 Christ. B. L. .358. 
 
 (5) The letter of attorney, and 
 the attestation, should be left at 
 the bankrupt ofiice. 
 
 (4) 8th August, 1809.
 
 Sect. 1.] OF THE CERTIFICATE. 565 
 
 to their signatures the day of the month and year — which Signature 
 was done, in fact, by the witness who attested the signa- J-^^^^' 
 
 tures — and it appeared that the omission proceeded through 
 
 the inadvertence of the witness, who had afterwards (but 
 before the commissioners signed) inserted such dates, which 
 were known to him by means of daily memorandums ; — 
 Lord Eldon thought, that this afforded ground for dispens- 
 ing with the strict requisition of the order. (1) 
 
 The bankrupt is entitled to the inspection of the pro- Bankrupt 
 ceedings under the commission, for the purpose of ascer- i^spg^t 
 taining the debts proved, with a view to solicit his creditors proceed- 
 to sign his certificate. (2) "^^^" 
 
 The certificate should not be signed by any creditor, Certificate 
 
 previous to the bankrupt passing his last examination ; for f"°^'*^ "^*^ 
 ^ . be signed 
 
 that would be contrary to the meaning of the act, which before last 
 
 says, the bankrupt is not to be discharged from his debts, ^''.^'"^"" 
 •^ / ^ *= ^ ' ation. 
 
 until he has " in all things conformed himself to the laws 
 in force concerning bankrupts ;" — and before he passes his 
 last examination (which is one of the principal duties re- 
 quired of him) it would be impossible for the commissioners, 
 notwithstanding the consent of the creditors, to certify that 
 the bankrupt had so conformed himself. If, therefore, the 
 certificate is signed by any creditor before the last examin- 
 ation, it will be sent back by the Lord Chancellor, and 
 must be signed afresh both by such creditor and the 
 commissioners. (3) 
 
 There is no way of compelling creditors to sign the Creditors 
 
 certificate ; who have the risht of exercising an absolute "°!; *:°"" 
 
 • , 1 • , V 1 • 1 ,71 , pellable to 
 
 discretion on the subject (4*) — being under no legal, though sign cer- 
 
 they may sometimes be under a moral,, obligation in this tificate. 
 
 respect. (5) Indeed, they are often (for their own interests) 
 
 too ready to afford the bankrupt that relief, which the law 
 
 has, in this instance, left entirely in their hands to grant, 
 
 (1) Expartel/flZHg, 1 G.&J.348. (4) Per LordM.JRobson v. Calze, 
 
 (2) Ex parte Morgan, 1 G. & J. Doug. 229. 
 
 404. (5) 18 Ves.j42.; and see 11 Ves. 
 
 (3) Ex parte Srovm, 1 Rose, 424. 17Ves. 118. iVes. &Ii. 47. 
 176. Ex parte King, 11 Ves. 424. i Rose, 1S9. 5 V. ^ B. 103. 
 
 VOL. I. * o o 3
 
 >66 
 
 QF THK CERTIFICATE. 
 
 [Ch.,^ 
 
 Signature 
 by cre- 
 ditors. 
 
 Creditor 
 cannot 
 sign, when 
 not en- 
 titled to a 
 dividend. 
 
 One part- 
 ner may 
 sign; 
 
 but not 
 one trus- 
 
 m>'' '-' 
 
 Receiver 
 
 cannot 
 
 sign. 
 
 As to an 
 executor. 
 
 or refuse. And (as Lord Eldon well observed in Ex parte 
 Ki?tg{l)) there can be no stronger proof of the good-nature 
 and humanity of the British character, than the readiness 
 with which creditors sign a bankrupt's certificate, before 
 they know even vi^hether he has made a full disclosure of 
 his effects. 
 
 The certificate must not be signed by a creditor not 
 entitled to a dividend under the commission ; such as (for 
 instance) a creditor upon a bond of indemnity who has not 
 been damnified ; and, though such a creditor may have 
 been improperly admitted to prove, yet he has no right 
 deducible from such proof to sign the certificate. (2) Where 
 a creditor after proving has assigned his debt, the late Vice-? 
 Chancellor thought that he could not sign the certificate 
 without the authority of the assignee. (3) But Lord Eldon 
 afterwards ruled the contrary, holding that the assignee, 
 whose interest does not accrue till subsequent to the com- 
 mission, has no control whatever over the certificate. (4) 
 
 One partner may sign a certificate for himself and his 
 copartners (5), even though the partnership has (since the 
 proof of the debt under the connnission) been dissolved. (6) 
 But one of several trustees is not competent to sign the 
 certificate for himself and his co-trustees. (7) 
 
 A receiver appointed to prove and receive dividends, it 
 seems, cannot sign the certificate; though he may petition 
 to stay it. (8) 
 
 The executor of a creditor (who has died since the proof 
 of his debt) may sign the certificate. But if the executor 
 has also proved a debt in his own right, he cannot sign the 
 certificate twice ; for, both being debts to him individually in 
 point of law, he can only be regarded as a single creditor. (9) 
 
 " (i) 11 Ves. 424. 
 
 (2) Ex parte Buchier, 1 C.B.L. 
 4G2, 
 
 (5) Ex parte Taylor, 1 G. & J. 
 599. 
 
 (4) Ex parte Herbert, 2 G.& J.66'. 
 
 (5) Ex parte Hodgkinson, 19 Ves. 
 293. Ex parte ilf ;/(://£■//, H Ves. 597. 
 
 (6) Ex parte Hall, 1 Rose, 2. 
 17 Ves. 62. 
 
 (7) Ex parte Rigby, 2 Rose, 224. 
 
 (8) Per Lord Eldon, ex parte 
 SJinw, iG. &J. 151. Ex parte 
 Evans, 1 Mont. B. L. 252. 
 
 (9) Ex parte Saumcrez, 1 Atk. 
 84, Ex parte Straccy, 1 Rose, 66.
 
 Sect. 1.3 OF THE CERTIFICATE. 567 
 
 Executors should not sign a bankrupt's certificate, with- Signature 
 out previously consulting the cestui que trusts ,- and if the £(o^g' 
 
 latter are infants, and therefore not capable of giving con- 
 
 sent, there seems to be some hazard (when no dividend is ^^''^^u^^"* 
 paid under the commission) in the executor, of his own sign with- 
 authority, taking upon himself to absolve the bankrupt from °"' ^°"" 
 all further (1) demands. The signature of one executor cestui que 
 will (as in the case of partners) bind his co-executor. (2) trusts. 
 
 If the bankrupt himself becomes the executor of a creditor, Where 
 
 who was entitled to sign the certificate, it has been said, that "^"'^''"Pt 
 o _ ' executor 
 
 he himself might in that capacity sign his own certificate. (3) of a credi- 
 But, if the creditor dies before proving his debt, it is now *^'"' 
 settled, that the bankrupt executor cannot prove under his 
 own commission, 'without an order of the Lord Chancellor ; 
 and, consequently, cannot (without such order) sign his 
 own certificate. (4-) 
 
 The proof of the petitioning creditor at the opening of As to 
 the commission does not entitle him to sign the certificate, creditoi'."^ 
 without proving also at a public meeting. (5) 
 
 If any of the creditors are induced by money, given Money 
 either l^y the bankrupt himself, or by a third person, to g^^^" '^ a 
 sign his certificate, the money may be recovered back, and sign ren- 
 the certificate will be void on the ground of fraud "enerally — ^^'"* certi- 
 though there is no express provision to tnis eiiect in the 
 statute. (6) For, since many creditors are prevailed on to 
 sign, because others have done so before, whom they sup- 
 pose to be upon a par with themselves — if the first credi- 
 tors, therefore, are in reality paid for signing, it would be 
 a cheat upon those who have received nothing, and who 
 sign the certificate trusting to the integrity of the previous 
 
 (1) Powell V. Evans, 5 Ves. 859. (5) Ex parte Davis, 2 Cox, 398. 
 
 (2) Ibid. (6) It is somewhat singular, that 
 
 (3) Coz6i/)er's case, Green, 260. the 125th section (which will be 
 
 (4) Ex parte Shaw, 1 G. & J. presently noticed) should apply 
 151. Ex parte Marshall, 1 G. & only to contracts, or securities, for 
 J. 163. n. the payment of money, and not to 
 
 the actual payment of money. 
 
 O o 4-
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Signature 
 hy cre- 
 ditors. 
 
 When 
 money 
 given 
 witliout 
 the know- 
 ledge of 
 the bank- 
 rupt. 
 
 signatures. And, indeed, whether such creditors sign yfrs/, 
 or last, it is apprehended, that such a transaction would be 
 contrary to the whole spirit of the bankrupt law; which is in- 
 tended to prevent any one creditor from gaining an unfair ad- 
 vantage over another. ( 1 ) Even if the money is to be divided 
 among all the creditors (2), or is paid by a third person tra'/A- 
 out the privity o^ the. bankrupt(3), the certificate will be equally 
 void; since great corruption, and oppression, might arise from 
 a combination of all the creditors to exact conditions for their 
 signatures. (4) When any near relative, for instance, is in- 
 duced through compassion to pay the money for the bank- 
 rupt, this is an unworthy advantage taken by the creditor 
 to extort money, as a price for doing what he ought to do 
 voluntarily, if the bankrupt has dealt fairly with his credi- 
 tors. On the other hand, if tlie bankrupt has been guilty 
 of any fraud or concealment, the creditor ought not to sign 
 for any consideration whatever. And, although the other 
 creditors (who have signed) would be sufficient in number 
 and value to give the certificate validity, without reckoning 
 the one who takes money for his signature — yet the certifi- 
 cate will be equally bad ; for his example may have induced 
 the others to sign. (5) 
 
 It may, on the first view, seem a hard case upon the bank- 
 rupt — when a third person, without the least knowledge on 
 his part, gives money lo obtain a creditor's signature — that 
 the certificate should for this reason alone be held void. (6) 
 The principle, on which this doctrine is founded, is, that 
 although the bankrupt shall not be punished for the fraud 
 
 (1) Phillips V. Dicas, 15 East, 
 248. Robson v. Calze, 1 Doug. 
 228. Smith V. Bromley, ibid. 696. 
 
 (2) Jones v. Barkley, 2 Doug. 
 695. note (3). 
 
 (3) Holland v. Palmer, 1 Bos. & 
 P. 95. Ex parte Butt, loVes.359. 
 
 (4) Per Lord M. 2 Doug. 698. 
 
 (5) 15 East, 248. Mr. Montagu, 
 and Mr. Eden, both justly remark, 
 that it may be inferred from this 
 reasoning, that if there were suffi- 
 
 cient creditors without the cre- 
 ditor who had been so induced to 
 sign, and it appeared that the sig- 
 nature of such creditor was sub- 
 sequent to that of the others, so 
 that they had not been induced to 
 sign by his exa^nple, the certificate 
 in that case would not be actually 
 void. 1 Mont. Dig. 536. Eden's 
 B.L. 385. 
 
 (6) 1 Doug. 228. loVes.359.
 
 Sect. 1.] OF THE CERTIFICATE. 669 
 
 of a third person, yet he shall not avail himself of it. (1) Signature 
 But, though the bankrupt is prevented from deriving any J-^^^g' 
 
 benefit from a certificate, to which the signature of a credi- • 
 
 tor has been thus obtained, yet he will not be precluded 
 from procuring another certificate sufficiently signed, without 
 the signature of the creditor who had received the money ; 
 and the Lord Chancellor will, in such a case (upon the ap- 
 plication and affidavit of the bankrupt) assist him in so 
 doing, by ordering the first certificate to be cancelled, that 
 he may be enabled to procure a fresh one. (2) And Lord 
 Mansfield said in a case of this kind — if there were creditors 
 enough who would sign the certificate, and an enemy of 
 the bankrupt were to give money to one of the creditors to 
 induce him to sign, for the mere purpose of preventing the 
 bankrupt from receiving any benefit from the certificate, — 
 that this would be a fraud on the bankrupt, and would not 
 hurt him. 
 
 If a creditor is even induced by money to withdf'a'w a Where a 
 
 petition presented against the certificate — or after such a ^^^^^^^ 
 
 . . . . . _ tor money 
 
 petition sells his debt, with an agreement to withdraw his withdraws 
 
 petition, — this will also avoid the certificate ; and in order to ^ petition. 
 
 prevent such practices, (which, it seems, were at one time 
 
 not unfrequent) petitions against a certificate are now not 
 
 permitted to be withdrawn, as a matter of course. (3) 
 
 But if creditors are induced to sign the certificate, for the Where 
 
 sole purpose of rendering the bankrupt competent as a gj^j, 
 
 witness in an action brought by the assignees, the certifi- merely to 
 
 cate, in this case, will not be considered illegal ; for this is ^ankruDt ^ 
 
 merely a mode of getting over a technical objection to evi- competent 
 
 dence, by procuring a release from the bankrupt — and thus 
 
 removing that interest, which would otherwise incapacitate 
 
 him as a witness. (4) 
 
 (1) Ibid. (3) Ex parte Gibson, iC. B.L. 
 
 (2) Ex parte Harrison, 4 Mont. 465. 6 Ves. 5. 
 B. L. App. 36. Per Eyre C. J. Hoi- (4) &% v. Crew, 2 Anst. 504. 
 land V. Palmer, 1 Bos. & P. 96. 
 
 as a wit- 
 ness.
 
 570 
 
 OF THE CERTIFICA-ra. 
 
 [61). 14. 
 
 Signature 
 by cre- 
 ditors. 
 
 Creditor 
 may be 
 sued to re- 
 cover back 
 money 
 paid to 
 him for 
 signing. 
 
 Contract 
 or security 
 to induce 
 a creditor 
 to sign, 
 void. 
 
 Privity of 
 the bank- 
 rupt im- 
 material. 
 
 As it is illegal for a creditor to tdke^ so it is equally illegal 
 for him to retain^ money paid to him by a bankrupt's friend 
 for signing the certificate. Therefore, an action will lie to 
 recover back money paid to a creditor for such a purpose. 
 For, in this case, the parties are not considered in pari 
 delicto, as they are in a case where the act is in itself immoral ; 
 but the creditor here is held to be the only criminal, who, 
 by taking an unfair advantage of the situation of the bank- 
 rupt, and working on the compassion of his friend, is in fact 
 guilty of no less a crime than that of extortion. (1) 
 
 It has been ruled at iSlisi PriuSf that if a certificate be 
 impeached, on the ground that it was signed by fictitious 
 creditors, the persons who swore to the fictitious debts 
 must, if possible, be produced to prove the fraud; as their 
 testimony is open to much observation. (2) 
 
 By section 125. (3) of the new statute, any contract or 
 security made or given by a bankrupt or other person, 
 unto or in trust for any creditor, or for securing the pay- 
 ment of any money due by such bankrupt at his bank- 
 ruptcy, as a consideration, or with intent to persuade such 
 creditor to consent to or sign (4) such certificate, is declared 
 to be void ; and the money thereby secured or agreed to 
 be paid cannot be recovered : and the party sued on such 
 contract or security may plead the general issue, and give 
 the act of parliament and special matter in evidence. 
 
 The same principle (in regard to the priviti/ of the bank- 
 rupt,) applies to a contract or security to pay money, as well 
 as to money actually paid, it being perfectly immaterial, whe- 
 
 (1) Smith V. Bromley, 2 Doug. 
 696. n. Cockshott v. Bennett, 2 T. 
 R. 766. ; and see Nerot v. Wallace, 
 3 T. R. 1 7. Coles V. Lovell, 1 Esp. 
 282. 
 
 (2) Edmonstone v. Webb, 5 Esp. 
 264. qu. tanien, for they are not 
 compellable to confess themselves 
 guilty of perjury. See 1 Phill. on 
 Ev. 286. 
 
 (5) This is taken from 5 Ann. 
 C. 22. 5G. 2. c. 30. S. 10. 24 G. 2. 
 C. 57. s. 10. 
 
 (4) It is rather extraordinary that 
 this section does not include in its 
 prohibitions the acttial payment of 
 money, as well as any contract or 
 security for money.
 
 Sect. 1.] or Trf-E CERTIFICATE. 571 
 
 ther the one or the other is paid or given with, or without, Signature 
 his knowledge — and whether, also, the agreement is to pay y '^''^' 
 
 money to individual creditors, or to all the creditors. (1) 
 
 In like manner, where the security is given, in consideration 
 of the creditor withdramng a petition preferred by him 
 against the bankrupt's certificate, the same principle, which 
 applies when money is paid, will render the certificate 
 equally bad. (2) 
 
 With respect to the security itself; — it has been decided Note for a 
 in a case, where the bankrupt gave a promissory note, even f^^'j^ul^" 
 for a pre-existing debt, to a creditor, who afterwards signed void, 
 the bankrupt's certificate — though he did not prove under 
 the commission — that the note was altogether invalid ; for 
 that independently of a security being void, which is given 
 to a creditor to induce him to sign the certificate, it was 
 against public policy, that any thing leading to that residt 
 should be allowed. (3) 
 
 The principle of these decisions is also extended to the As to the 
 case of an insolvent, who assigns over his effects for the case of an 
 benefit of his creditors. (4) But a further security given or a deed 
 by a third person to a creditor for the same amount only, of compo 
 as he would be entitled to in proportion with the other 
 creditors, has been held (in the case of a deed of compost" 
 tion) not within the principle ; as the creditor was not to 
 receive more than the others. (5) This point, however, it 
 is apprehended, would not be so decided in the case of a 
 bankrupt's certificate, — the statute expressly declaring, 
 that ani/ security 'vohateva' for the payment of monej', with 
 intent to persuade the creditors to consent to, or sign the 
 certificate, shall be void. (6) 
 
 (1) Jones V. Barkley, 2 Doug. Lord Loughborough's judgment, 
 695. Holland v. Palmer, 1 Bos.tV 1 H. B. 655. 
 P. 95. Ex parte J?«<f, loVes.359. (s) Haywood v. Chambers, 5 B. 
 
 (2) Sumner v. Brady, 1 H.B. 647. & A. 753. 
 A different doctrine was formerly (4) Jackson v. Lomas, 4 T. R. 
 held in Lewis v. Chase, 1 P. Wms. 166. ; and see Cockshott v. Bennett, 
 620. but that case has been long 2 T. R. 763. 
 exploded as an authority. See {5) Feisew. Randall, gT.R, 1^6. 
 
 (6) Section 125. 
 
 sition.
 
 572 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Commis- 
 sioners 
 must cer- 
 tify bank- 
 rupt's con- 
 formity, 
 &c. 
 
 but must 
 have pre- 
 vious proof 
 of credi- 
 tors' signa- 
 tures. 
 
 Bound to 
 certify as 
 to certi- 
 ficate 
 under a 
 former 
 commis- 
 sion, &c. 
 
 Section II. 
 Of the Signature of the Commissiojiers. 
 
 ^y section \22 . oi the. new act, it is declared, that no 
 certificate shall discharge the bankrupt, unless the com- 
 missioners shall, in writing under their hands and seals, 
 certify to the Lord Chancellor that the bankrupt has made 
 a full discovery of his estate and effects, and in all things 
 conformed himself to the law; and that there does not 
 appear any reason to doubt the truth or fulness of such 
 discovery ; and also, that the creditors have signed in the 
 manner directed by the act. The bankrupt is also required 
 to make oath in writing, that such certificate and consent 
 were obtained without fraud, previous to the allowance by 
 the Lord Chancellor. 
 
 And by section 124. the commissioners are directed not 
 to sign the certificate, unless they shall have proof by affi- 
 davit in writing of the signature of the creditors thereto, 
 or of any person thereto authorised by any creditor, and 
 of the authority by which such person shall have so signed 
 the same. If any creditor resides abroad, the authority 
 must (as we have already seen ( 1 ) ) be attested by a notary 
 public, British minister, or consul. 
 
 By a general order of Lord Apsley, the commissioners 
 are directed to inquire, whether the bankrupt ever, and 
 how long before, had obtained a certificate under any 
 former commission, or had been discharged under any act 
 for the relief of insolvent debtors ; and in case they have 
 reason to believe either the one or the other of these 
 facts, the commissioners are directed to proceed upon 
 such inquiry, and hear the evidence thereon in the pre- 
 sence of the bankrupt, who is to be informed of the 
 subject of the inquiry, and to be at liberty to lay evi- 
 dence before them relating thereto. And, in case any 
 
 (1) Ante, 564.
 
 Sect. 2.1 OF THE CERTIFICATE. QfB 
 
 of such matters appear to the commissioners, they are Signature 
 
 directed, at the time of making their certificate, also ^. ^"^^ 
 
 separately to certify to the Lord Chancellor such of the 
 
 said matters as they find to be true, and to transmit 
 
 such separate certificate to the secretary of bankrupts, to 
 
 be laid before the Lord Chancellor at the same time with 
 
 the other certificate. 
 
 Bv a General order of Lord Eldon (1), the signature and Astoattes- 
 ,/ ^^ , -n II . . * , tationut 
 
 seahng oi the certificate by the commissioners must be certificate. 
 
 attested in writing by the solicitor to the commission, 
 or some clerk of the solicitor — or by the messenger to the 
 commission, or by some clerk of the commissioners. And, 
 in order to avoid frauds upon the commissioners with 
 respect to the certificate, a list is directed to be made and 
 kept by the commissioners, or one of them, of all creditors 
 above 20/., who shall from time to time prove their debts, 
 and of the amount of their respective debts ; which list, as 
 the same shall be from time to time made up, must be 
 signed by three of the commissioners. The signature and 
 sealing of ewry 0??^ of the commissioners must be attested 
 pursuant to the directions of this order, otherwise the cer- 
 tificate will be sent back by the Chancellor. (2) 
 
 The discretion of the commissioners, as to signing the Discretion 
 
 bankrupt's certificate, is (like that of the creditors) subject o/commis- 
 
 '^ ^ . sioners, as 
 
 to no control. They are pledged (by the sanction of an to signing, 
 
 oath) to speak their real sentiments, arising? from their ob- s^^y^ct to 
 
 no c^" 
 
 servation upon the whole of the bankrupt's conduct; and trol. 
 they ought to be governed entirely by their own opinion, 
 whether he has dealt fairly, or fraudulently, by his creditors. 
 Indeed their jurisdiction, in this respect, is as distinct, as 
 uncontrollable, and as much without appeal, as that of the 
 Lord Chancellor himself; who, though he may render 
 their certificate nugatory by withholding his confirmation, 
 or recommend them to review their judgment, in case they 
 
 (J) 8th August, 1809. (2) Ex parte Jones, 1 G. & J. 
 
 186. 
 
 no con-
 
 574. 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Signature 
 hy com- 
 missioners. 
 
 As to sup- 
 plemental 
 certificate. 
 
 Commis- 
 sioners 
 confined 
 in their 
 consider- 
 ation of 
 bankrupt's 
 conduct. 
 
 Where 
 proceed- 
 ings are 
 lost. 
 
 refuse to certify, yet he cannot exercise any controlling - 
 authority over them on this subject. (1) And where the 
 commissioners had, on one occasion, given certain reasons 
 in writing to the Lord Chancellor for refusing to sign the 
 certificate, and the bankrupt petitioned that the commis- 
 sioners should produce them. Lord Erskine dismissed the 
 application. (2) A mandamus^ therefore, will not lie to 
 compel commissioners to sign a bankrupt's certificate. (3) 
 And where a certificate has been signed by the commis- 
 sioners, and is sent back to them by the Lord Chancellor 
 for the purpose of letting in the proof of other creditors, 
 the commissioners are not confined to that object ; and if 
 they cannot conscientiously and judiciously re-certify what 
 they have certified before, they are not compellable to do 
 so ; neither are they bound by their former certificate. 
 They may, therefore, in such case refuse to sign a supple- 
 mental certificate. It seems that the original and supple- 
 mental certificates are considered but as one act, the 
 supplemental one giving the date to the whole ; so that if 
 the commissioners were to certify with reference to the 
 subsequent proceedings, they would be understood to re- 
 certify all that was contained in the original certificate. (4) 
 
 The commissioners, however, in examining the bank- 
 rupt's conduct previous to their signing his certificate, are 
 confined to his conduct since he became a bankrupt — 
 their duty being merely to consider, whether he has 
 in their opinion duly conformed to the provisions of the 
 statute. (5) 
 
 In a case where the proceedings under the commission 
 were lost, and it appeared by the report of the commis- 
 
 (1) Ex parte King, 11 Ves, 417. 
 IsVes. 181. 15 Ves. 126. 
 
 (2) 13 Ves. 182. 
 
 (3) Ex parte John King, 7 East, 
 92. ; and see per Lord Hardw. Ex 
 parte Williamson, 1 Atk. 82. 
 
 (4) Ex parte King, 15 Ves. 126. 
 This bankrupt, of notorious me- 
 
 mory, applied upon four different 
 occasions to two successive Chan- 
 cellors, as well as the Court of 
 King's Bench, to compel the com- 
 missioners to sign his certificate. 
 
 (5) 1 V. & B. 47, 48. 1 Rose, 
 190.
 
 Sect. 3.] OF THE CERTIFICATE. 575 
 
 sioiiers, that the loss was not occasioned through any de- Signature 
 iault of the bankrupt, — the commissioners were, upon the mmionen. 
 
 petition of the bankrupt, authorized by the Lord Chan- 
 
 cellor to sign the certificate, after certifying a list of the 
 creditors who had proved under the commission, pursuant 
 to the directions of tlie general order. ( I ) 
 
 Section III. 
 
 Of the Alloxvancc of the Certifcate hy the Lord Chancellor ; 
 and herein of opposing the Allowance, and recalling the 
 Ca^tifcate after Allowance. 
 
 When the certificate is signed by the commissioners, in 
 
 order to be of any effect, it must be allowed and confirmed 
 
 by the Lord Chancellor ; before which formality it is in law 
 
 considered as no certificate. (2) Previous to this proceed- Previous 
 
 ing, however, the bankrupt must make oath in writing, that *|f ^^^\°^ 
 
 the certificate of the commissioners, and the consent of the nipt. 
 
 creditors were severally obtained without fraud (3) Every 
 
 affidavit, authority, and attestation, also, as to the signature 
 
 of the creditors (which are required to be exhibited to the 
 
 commissioners before they sign the certificate) must be 
 
 laid before the Lord Chancellor, along with the certificate 
 
 previous to its allowance. Notice must then be given in Notice 
 
 the Gazette, that the certificate will be allowed by the '" ^^^ 
 
 Gazette 
 Lord Chancellor, unless cause is shown to the contrary 
 
 on or before a particular day (which must be above twenty- 
 one days from the notice in the Gazette), and the certificate 
 
 ( 1 ) Ex parte Ltuhbrouke, 1 Mont, the consideration of it being refer- 
 Dig. 339. red to them by the Great Seal; 
 
 (2) Ex parte Sawyer, 1 Rose, but the practice of referring it to 
 141. 7T. R. 296. Ex parte -4n5e^, the Judges has for a long time be- 
 19Ves. 208. The former statutes come obsolete. (Ex parte iSajf 7»e- 
 of 4&5Ann. .5G. 1. and 5G. 2. rez, 1 Atk. 84. 87.) The new act, 
 enabled two of the Judges (as well also, contains no such provision, 
 as the Lord Chancellor) to allow (5) Section 122. 
 
 and confirm the certificate, upon
 
 576 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Allowance 
 by Chan- 
 cellor. 
 
 Wlien 
 petition 
 against 
 certificate. 
 
 Certificate 
 must be 
 registered. 
 
 Certificate 
 free of 
 stamp 
 duty. 
 
 Secretary 
 of bank- 
 rupts to 
 search 
 whether 
 any former 
 certifi- 
 cates. 
 Chancel- 
 lor's juris- 
 diction as 
 to the cer- 
 tificate. 
 
 must lie during that time in the Bankrupt office for 
 allowance. If a petition is presented against the certificate 
 on or before the day appointed for the allowance, it is im- 
 mediately stayed, until the petition is heard by the Chan- 
 cellor, which is set down to come on in the usual course. 
 The petition should be served upon the bankrupt, that he 
 may have an opportunity of answering the allegations con- 
 tained in it ; and, if the Chancellor eventually makes an 
 order to stay the certificate, such order must be drawn up 
 within three months, or the certificate will be allowed, (l) ' 
 
 As soon as the certificate is allowed by the Lord Chan- 
 cellor, it should be entered of record at the Bankrupt office, 
 and have a memorandum of such entry indorsed thereon 
 by the proper officer, or his deputy, pursuant to the requi- 
 sitions of the ninety-sixth section of the statute ; otherwise 
 it will not be receivable in evidence in any court of law, 
 or equity. 
 
 By section 98. of the new act, the certificate as well as 
 all other proceedings under a commission of bankrupt are 
 now exempted from any stamp duty. 
 
 By a general order of Lord Apsley (2), when any certi- 
 ficate is brought to the secretary of bankrupts in order for 
 allowance, he is directed to search for and certify to the 
 Lord Chancellor, whether he can find any previous certi- 
 ficate having been before allowed to the same bankrupt. 
 
 There are no compulsory words in the statute to oblige 
 the Lord Chancellor to allow the certificate, vrhich is entirely 
 a matter resting on his own judgment (3) ; though, at the 
 same time, not quite arbitrarily so ; as he must proceed by 
 certain rules pointed out by the act of parliament, and esta- 
 blished by a series of decisions in Bankruptcy. If these re- 
 quisites are complied with, the Lord Chancellor ought to 
 allow the certificate : if not complied with, or if there is ground 
 for him to think that there is fraud or concealment on the 
 
 (l) Lord Loughborough's Ge- 
 neral Order, 22d March, 1796. 
 
 (2) 12th February, 1774. 
 
 (o) And see ante, 564. note (1).
 
 Sect. 3.] OF THE CERTIFICATE. 577 
 
 part of the bankrupt, he may absolutely tlisallow it. (1) Allowance 
 But, in considering the propriety of allowing the certifi- ^:^/^,.. 
 
 Gate, the authority of the Lord Chancellor, like that of the 
 
 commissioners, is confined to the investigation of the bank- 
 rupt's conduct under the commission ; and he has no power 
 to take into his consideration any circumstance affecting 
 the bankrupt, which is entirely unconnected with the bank- 
 ruptc}'. (2) In granting or withholding the certificate, 
 however, the Lord Chancellor is influenced by a number 
 of considerations, to which the commissioners are not to 
 attend. (3) 
 
 If all the requisites have been complied with, previous I" case of 
 to laying a certificate before the Lord Chancellor for his of bank- 
 allowance, it may be allowed by him, even after the death rupt. 
 of the bankrupt. (4) And where a joint certificate of two 
 partners was duly signed by the creditors, and one of 
 the bankrupts died before the commissioners certified their 
 conformity ; and the commissioners afterwards certified that 
 the bankrupt had conformed, and that one of them died 
 without making the usual affidavit of conformity ; — upon 
 the petition of the surviving bankiupt, the Lord Chancellor 
 ordered, that the joint certificate should be inserted in 
 the Gazette, as the separate certificate of the petitioner; 
 and that the same should be allowed and confirmed, as 
 such separate certificate, if no cause should be shown to 
 the contrary. (5) 
 
 Any creditor who has proved, or even been admitted a Who may 
 
 claimant (6) under the commission, and who has irood ^PP"^^ ^^^ 
 1 r ^ I ^ allowance, 
 
 grounds tor opposnig the allowance oi the bankrupt's 
 
 certificate, may do so by petition to the Lord Chancellor, 
 
 although his debt does not amount to 20/. (7) For though 
 
 a creditor under 201. is excluded from assenting to, or 
 
 (1) Per Lord Hardwicke, 2Ves. (5) Ex parte Currie, 10 Ves. 51. 
 249. 1 Atk. 82. Ex parte Cossart, 1 G. & J. 248. 
 
 (2) Ex parte Gardner, 1 Ves. & (6) Ex parte Fydell, 1 Atk. 75. 
 B. 45. Ex parte IVillianison, ibid. 81. 
 
 (3) Ex parte Ki7ig, 11 Ves. 421. (7) Ex parte Allen, 7 Vin. 134. 
 
 (4) Bromleyv. Goodere, 1 Atk. 77. Section 1 22. 
 
 P P
 
 578 
 
 OF THE CEKTIFICATE. 
 
 [Ch. 14. 
 
 Allowance 
 hy Cliaii' 
 cellar. 
 
 Mort- 
 gagee. 
 
 Receiver. 
 
 Partner. 
 
 When cre- 
 ditor who 
 has not 
 proved, 
 may peti- 
 tion. 
 
 dissenting from the certificate, yet as he is materially af- 
 fected by the consequence of allowing it, he has a right 
 to show any cause against its allowance. But, where there 
 were accounts depending between certain parties and the 
 bankrupt, and they would not swear to a balance in their 
 favour, they were not allowed to petition (1) against the 
 certificate. 
 
 A mortgagee may petition to stay the certificate, if he 
 has used due diligence to establish the amount of the pro- 
 bable debt (2); but, if he does not swear that he believes a 
 balance will be due to him after the sale of the mortgaged 
 premises, the petition will be dismissed. (3) And if there 
 is a dispute, as to the probable amount of the balance, the 
 certificate will be directed to be deposited in the Bankrupt 
 office, subject to further orders. (4) 
 
 So a receiver appointed by the Court to prove and re- 
 ceive dividends, may petition to stay the certificate, though 
 it is doubtful whether he can sign it. (5) 
 
 The 'partner of the bankrupt may petition to stay the 
 certificate, until the partnership accounts are taken, no 
 want of due diligence being imputable to the petitioner. (6) 
 
 A creditor, who has not proved his debt, may neverthe- 
 less petition that the certificate be stayed, in order to give 
 him an opportunity of proving, and of assenting to, or 
 dissenting from, the certificate — provided he gives a sa- 
 tisfactory reason for his not having proved before. (7) 
 But where a creditor has been guilty of laches, in not 
 proving his debt — though he omitted to do so upon the 
 supposition, that he would be entitled to elect — he cannot 
 petition to stay the certificate. (8) And where a creditor, 
 eight months alter the issuing of the commission, presented 
 
 (i) Ex parte Johnson, 1 Atk.81. 
 
 (2) Ex parte Whitchurch, 1 G.& 
 J. 71. 
 
 (3 ) Ex parte 2?a7n«fto^/ojn, sChrist. 
 501. 
 
 (4) 1 G. &J.71. 
 
 (5) Per Lord Eldon. Ex parte 
 Shaw, 1 G. & J. 151. Ex parte 
 Evans, 1 Mont. B. L. Z32. 
 
 (6) Ex parte Hadley, 1 G. & J. 
 193. 
 
 (7j Ex parte Adams, 2Bro. 48. 
 Ex parte Dyson, 1 Rose, 67. note. 
 Ex parte Birch, 1 Ma J. 100. 
 
 (8) Ex parte Benllcy, 2 Cox, 2 18. 
 Ex parte Warrokk, 14 Ves. 138.
 
 Sect. 3.] OF THE CERTIFICATE. 579 
 
 such a petition, and did not account Ibi' the delay, the pe- Allowance 
 
 tition was dismissed with costs. (1 ) Tlie Lord Chancellor, ^^z^,. 
 
 also, will not stay a certificate upon the petition of a 
 
 creditor, who has no intention to come in under the com- 
 mission, and who has the means of trying the validity of 
 the certificate at law. (2) 
 
 A creditor, who has taken the bankrupt in execution, \yhencre- 
 
 has been permitted to petition to stay the certificate (3) ; ^^^^^ ^ 
 
 but if the bankrupt is in custody, he must be discharged bankrupt 
 
 before he presents his petition, otherwise it will be dis- t"on^^*^"' 
 missel with costs. (4) 
 
 Any tampering of the petitioner with the bankrupt or What a 
 
 his friends, is a sufficient preliminary objection to the n'^r'ob'e - 
 
 hearing of a petition to stay a certificate; but, where a tion to 
 
 creditor believing the commission to be invalid, does not "'^f.""S 
 ^ ' petition. 
 
 prove under it, but acted adversely, and declared to the 
 
 bankrupt and his friends, that he meant to petition for a 
 sujjersedeas, and also to stay the certificate, unless his debt 
 was paid or satisfied ; — this was held to be not such a 
 tampering, as was sufficient to operate in bar of his pe- 
 tition. (5) 
 
 Creditors, who have signed the bankrupt's certificate. Though 
 may, nevertheless, be heard against its allowance ; and the i^^ve si^n- 
 allowance has been sometimes refused, and sometimes ad- ed, may 
 journed by the Lord Chancellor (6), even when there has certificate. 
 been no opposition to the certificate. 
 
 There are various grounds for suspending the allowance Distinc- 
 
 of the certificate, depending on the circumstances of each f'°" " 
 
 ^ i o ^ tween sus- 
 
 particular case : those for refusing it cntirelt/, are speci- pending, 
 fically defined by the 130/A section of the new statute, S^efh^J.^"" 
 which in certain instances therein mentioned, says, that the refusing 
 bankrupt shall be wholly deprived of it. (7) In the first ^certificate. 
 
 (1) Exparte5wi^^, 1 G.&J. 195. (5) Ex parte Paierson, 1 Rose. 
 
 (2) Ex parte Dodson, Buck. 225. 402. 
 
 (3) Exparte Jo5(fp/«, lsVes.540. (6) Per Lord M. Tudivai/ v. 
 
 (4) Ex parte Blaydes, 1 G. & J. Bourne, 2 Burr. 718. 
 179. Ex parte Lord, 2 Rose, 421. (7) See post, Section 5. 
 
 P P 2
 
 .1580 OF THE CERTIFICATE. [Ch. 14-. 
 
 Allowance case, — though there may be cause for suspending the al- 
 *^/iP*""" lowance, the certificate, if granted^ will nevertheless be 
 
 good ; in the last, where the statute positively says that the 
 
 bankrupt shall not be entitled to it, the certificate will be 
 invalid, notwithstanding the allowance by the Lord Chan- 
 cellor. But in both cases, whether of suspension or refusal, 
 the Lord Chancellor's power is subject to no appeal. 
 Causes for Where there has been too much precipitancy in the sig- 
 suspension. ,-,^j.^,j.g ^f ^\^q certificate, either by the commissioners, or 
 the creditors, the Lord Chancellor will suspend the allow- 
 Precipitate ance of it. As, if it is signed by the creditors before the 
 signatures, bankrupt passes his last examination, in which case (as has 
 been already stated) (1), it will be sent back by the Lord 
 Chancellor. (2) So where a certificate is signed so soon 
 after the bankrupt's last examination, as to prevent the 
 principal creditors (who lived abroad) from having time to 
 incjuire into the bankrupt's conduct, or to prove their debts, 
 the allowance of the certificate will be of course post- 
 poned. (3) And Lord Hardwicke said, in a case of this 
 kind, that he disapproved extremely of commissioners being 
 so precipitate in signing certificates; for that such hasty 
 proceedings inverted the very intention of the bankrupt 
 acts, which were made in favour of creditors, but were too 
 often abused for the service of insolvent persons. (4) After 
 a full time, however, has been allowed a distant creditor 
 for inquiry, and for sending an affidavit over to prove his 
 debt, the certificate will be allowed ; for certificates are not 
 to be locked up for ever, and the bankrupt deprived of that 
 liberty which the law has given him. (5) 
 Wronffde- Where the commission is taken out under a wrong de- 
 scription, scription, the certificate will be stayed, until proper adver- 
 tisements have been inserted for the creditors. (6) 
 
 (1) See ante, 565. (4) 1 Atk. 84. 
 
 (2) Ex parte Brovjne, 1 Rose, (5) Ex parte Williamson, 1 Atk. 
 176. 82. 
 
 (3) Ex parte Sauviarcz, 1 Atk. (g) Ex parte Gibson, 6 Vcs. 5. 
 84. Ex parte Lord, 2 Rose, 421. Ex parte Malkin, C. B. L. 451. 
 Ex parte Bnsnrro, 1 Rose, 2(;6.
 
 Sect. 3.3 OF THE CERTIFICATE. 58I 
 
 If no dividend has been made of the bankrupt's effects, Allowance 
 
 1 • r- • I •/> 1 i -4. • ^y Chart- 
 
 that IS a strong reason tor staynig the certihcate, but it is p^//o^_ 
 
 not a conclusive reason. In this respect, it seems that 
 
 Lord Eldon and Lord Thurlovv have differed from Lord di^Jden^** 
 
 Loughborough and Lord Erskine in their judgments; the made. 
 two hitter having, it is said, been of opinion, that it 'was a 
 sufficient reason for staying the certificate. (1) 
 
 A certificate has been refused to be stayed upon the what not 
 
 petition of creditors in Scotland, stating that the bankrupt " S""'^ 
 
 * •111 cause. 
 
 was properly the object of a sequestration, and that the ^^ ,. 
 
 question of sequestration was then depending in the Court in Scot- 
 of Session. (2) So if the debt of a creditor, who has •'^"'J- 
 proved under the commission, and signed the certificate, is . ^l^ ^r" 
 not impeached, an objection to the proof in point of time is time of 
 not sufficient to stay the allowance. (3) And where ere- P''oo'- 
 ditors, who had been admitted to claim debts under a ^\^^^ 
 commission, opposed the allowance of the certificate, and posed to 
 the bankrupt swore positively, that the balance, on taking ^f ^ank- 
 the account, would be in his favour — and the claimants did nipt, 
 not venture to swear that there would be any balance in 
 ihciy- favour ; — the Lord Chancellor refused to stay the 
 allowance ; for he said, that barely coming before the com- 
 missioners, and saying there is such a debt, is not suf- 
 ficient without an affidavit, when opposed to the posi- 
 tive oath of the bankrupt. (4) Neither will a certificate be Petition to 
 stayed, because there is a petition pending to supersede the supersede, 
 commission ; for a certificate must stand upon its own 
 merits. (5) 
 
 Where new creditors prove their debts, after the certi- New cre- 
 ficate has been signed by the commissioners, it will not be 
 stayed on this account — unless the new creditors themselves 
 
 (1) Ex. parte King, 11 Ves. 426. (.3) Ex parte Stracey, 1 Rose, 66. 
 Ex parte Cunningham, 2 Mont. Dig. (4) Ex. parte Johnson, 1 Atk. 8 1 . 
 152. Ex parte Williamson, 2 Ves. 249. 
 
 (2) Ex parte Cockayne, 2Rosc, (5) Ex parte ^o«ao;-, 2 Rose, 61. 
 233. 
 
 V V 3 
 
 ditors 
 proving.
 
 582 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Allowance 
 by Chan- 
 cellor. 
 
 Trial 
 pending. 
 
 Omission 
 of com- 
 missionerp. 
 
 Bankrupt 
 uncer- 
 tificated 
 under 
 former 
 commis- 
 sion. 
 
 State of 
 
 bankrupt's 
 
 accounts. 
 
 Retaining 
 money as 
 assignee. 
 
 petition for that purpose, and make out a case of the certi- 
 ficate having been fraudulently obtained. (!) 
 
 A certificate, also, will not be stayed in order to give a 
 creditor (who insists on a right to stop in trajisiiu, and is 
 waiting the result of a trial at law) an opportunity of 
 proving under the commission, in case he should fail in 
 his action. (2) Neither will it be withheld, because the 
 commissioners have mei'ely omitted to certify that the bank- 
 rupt has been a bankrupt before, in conformity with Lord 
 Apsley's order. (3) So when the bankrupt is uncertificated 
 under a former commission, that is no ground for staying 
 the certificate ; for though the second commission is abso- 
 lutely void at laiVf yet, if circumstances required it, a court 
 of equity would sustain that commission, and interfere to 
 prevent the production of the first. (4) 
 
 It has been held likewise to be no ground for staying a 
 certificate, that the bankrupt's accounts are in a slovenly 
 state — unless, indeed, he has refused his assistance to ex- 
 plain, or elucidate, them. (5) But, when it appears that the 
 bankrupt's statement on his examination is in itself incon- 
 sistent — as where he deposed, that he had no written do- 
 cuments except a book produced, which book appeared to 
 have been compiled from other written documents — the 
 Lord Chancellor, in such a case, wiU stay the certificate. (6) 
 And, where the bankrupt's partner petitions that the cer- 
 tificate may be stayed, until the partnership account is 
 taken, and there is no want of due diligence imputable 
 to the petitioner, we have seen (7), that that is a good cause 
 for making the application. (8) 
 
 It is no objection, however, to the allowance of the certifi- 
 cate, that the bankrupt has retained money in his hands, as 
 
 (1) Ex parte Fydall, 1 Atk. "3. 
 
 (2) Ex parte Heath, 6 Ves. 613. 
 
 (3) Ex parte Black, 1 Rose, 60. 
 
 (4) Ex parte T/iompsun, 1 Rose, 
 285. 
 
 (5) Ex parte Rawson, 1 Rose, 67. 
 
 (6) Ex parte Bangley, 17 Ves. 
 117. 
 
 (7) Ante, 578. 
 
 (8) Ex parte Hadlcy, 1 G. & J. 
 193.
 
 Sect. 3.] OF THE CEUTIFICATE. 58S 
 
 assignee under another commission ; for the statute pro- Allowance 
 
 vides a specific remedy (1) for that particular mischief. (2) cellor"^^^ 
 
 A certificate under a separate commission, lying for 
 
 allowance before the Lord Chancellor, will not be stayed ^''!"!"S o 
 
 . . . . a joint 
 
 merely because a joint commission is issued ; but if the coimnis- 
 
 certificate is fairly obtained, the Lord Chancellor will *'^"- 
 
 allow it; and, in order to give it effect, will impound the 
 
 separate commission in the Bankrupt office, instead of 
 
 superseding it — and will direct the proceedings and proofs 
 
 to be transferred to the joint commission. (3) 
 
 As to those cases, where the statute provides that the As to dis- 
 certificate shall be void (4), even though it is allowed — the ^f c^^^i!!^'' 
 Lord Chancellor is, of course, bound absolutely to refuse ficate, 
 the allowance, if the opposing creditor adduces sufficient Y"^"*^ '^ '^ 
 evidence before him to bring the bankrupt within any of to be void. 
 those cases. But when the affidavits of the parties are in 
 direct opposition to each other. Lord Eldon has generally 
 allowed the certificate; because by refusing it, he said, the 
 Court withholds an opportunity to try the fact by a jury. (5) 
 Therefore, where a petition to stay the certificate alleged, 
 that the bankrupt had acknowledged to have lost a parti- 
 cular sum by stock-jobbing transactions — and the bankrupt 
 denied the loss on affidavit, though he admitted having 
 made the acknowledgment, — the certificate was refused to 
 be stayed ; but the petition was dismissed without costs, as 
 the acknowledgment was a justification of the petition. (6) 
 
 In a case, also, of mere suspicion^ the Court will refuse Mere sus- 
 to stay the certificate. (7) Thus, where a petition contained picion not 
 no other grounds of opposition, than that the party was around for 
 informed and believed, that the bankrupt had concealed his refusing it. 
 effects, the petition was dismissed with costs. (8) For if the 
 
 (l) Sections 104,105. (5) Ex parte Kcmiet, 1 Ves. & 
 
 (^) Ex parte Anderson, 1 Rose, B. 195. 1 Rose, 3.51. 
 
 93. (6) Ex parte Enderby, 5 Mad. 
 
 (3) Ex parte Tobin, 1 Ves. & B. 76. 
 
 308. (7) Ex parte Hall, 1 Rose, 5, 
 
 (4) Section 130. post. (8) \L\\yaiie Joseph, 1 Rose, 184. 
 
 18 Ves. 510. 
 
 r I> 4
 
 584. 
 
 OF Tire CERTIFICATE. 
 
 [Ch. 1 
 
 Allowance 
 hy Chan- 
 cellor, 
 
 When is- 
 sue di- 
 rected. 
 
 As to 
 directing 
 review of 
 certificate. 
 
 As to cer- 
 tificate of 
 bankrupt 
 uncerti- 
 
 certificate is allowed under such circumstances of conduct in 
 the bankrupt, as make it bad in law, the allowance then be- 
 comes altogether a nullity ; but if it be withheld by the 
 Chancellor, the bankrupt has no other means of obtaining 
 his certificate. (1) When, however, a creditor has proved 
 his debt under the commission, which renders hira unable 
 to bring an action at law against the bankrupt to try the 
 validity of the certificate, the Lord Chancellor frequently 
 directs an issue, in order to determine the controverted 
 fact. Thus, where such a creditor petitioned against the 
 allowance of the certificate, on the ground of the bankrupt 
 having lost money at a horse-race ; and it appeared, from 
 the bankrupt's last examination, that he had in fact sub- 
 scribed to a stake to be run for at Bedenell races ; — the 
 Lord Chancellor in this case directed an issue to try the 
 bankrupt's loss, in which the opposing creditor was to be 
 plaintiff; and he ordered the bankrupt's last examination 
 to be read upon the trial, with a declaration of the Chancel- 
 lor's opinion, that under the statute it amounted to proof of 
 gaming, unless it should be answered by other evidence. (2) 
 But, where a petition imputed conduct to the bankrupt which 
 amounted to felony, the Lord Chancellor would not in that 
 case direct an issue to try the fact of the bankrupt's con- 
 formity; for the bankrupt would then be in a worse 
 situation, than if the fact were tried by affidavits before the 
 Chancellor, in which proceeding both parties are heard. (3) 
 
 Upon a petition to stay the certificate, the Lord Chan- 
 cellor frequently refers it back to the commissioners, that 
 they may review it ; but where the ground of opposition 
 is, that a full discovery has not been made, this practice 
 has been held to be improper. (4) 
 
 There is one exception in practice to the rule, that the 
 Lord Chancellor will not allow a certificate, which (if 
 allowed) would be clearly void in law — and that is, (as we 
 
 (1) Ex parte Scott, Buck. 279. 
 
 (2) Ex parte Henderson, Buck. 
 557. 
 
 (3) Ex parte Scott, supra. 
 
 (4) Ex parte Bangley, 1 7 Ves. 
 117. 1 Rose, 187. n.
 
 Sect. 3.] OF THE CERTIFICATE. 585 
 
 may have already observed (1),) in the case of a certificate Allowance 
 under a second commission, where the bankrupt has not celloT\^\' 
 
 got his certificate under the first. For, in this case, though -k~ 
 
 the certificate (as well, indeed, as all other proceedings) ^^^^ ^ 
 under the second commission would be void at law, yet former 
 the Lord Chancellor will, under certain circumstances, sus- '^P'"™^- 
 tain the second commission by preventing the production 
 of the first, and will not refuse to allow the certificate 
 under the second commission. (2) 
 
 Where the application to stay the certificate was on the Court in- 
 ground of concealment of property by the bankrupt, the uy^i!!!^. 
 circumstances attending which were afterwards (by the ex- missioners' 
 amination of the bankrupt and other persons) disclosed to !^"^^I!'^'^^ 
 the commissioners — but the whole propei'ty had been deli- fraud im- 
 vered up to the assignees before the signature of the P"'^'^"- 
 certificate by the commissioners; — the Vice- Chancellor 
 held that he ought not, in this case, to refuse the certifi- 
 cate, as the commissioners had thought fit to sign it, with 
 a full knowledge of the facts. (3) 
 
 Where a bankrupt suffered Jictitioiis debts to be proved, Fictitious 
 Lord Eldon (even before the passing of the new statute, "^"'^^• 
 which includes this as one of the causes for invalidating 
 a certificate) declared that he never would in such a case 
 allow the certificate. (4) 
 
 Keeping a Lottery Office has been held to be no ground 
 for opposing a certificate, — nor even the obtaining goods 
 under false pretences (5) ; for except in the particular cases 
 specified in the act, the certificate is affected only by the 
 bankrupt's misconduct under the bankruptcy, and not before 
 the bankruptcy takes place. (6) 
 
 (1) Ante, 582. (4) Ex parte Shirley, 2 Rose,7 J, 
 
 (2) Ex parte Thompson, 1 Rose, Fret/deburgh's case, 3 Ves. & B, 
 285. 142. Ex parte Laffert, 1 Rose, 
 
 (3) Ex parte Bryant, 1 G. & J. 330. 
 
 205. But qufere, whether such a (5) Ex parte Richardson, 1 C. B. 
 
 certificate would not be considered L. 46.3. 
 
 void under section 130. (6) Ex parte Gardner, 1 Ves. & 
 
 B. 45.
 
 586 
 
 or THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Allowance 
 hy Chan- 
 cellor. 
 
 As to re- 
 calling cer- 
 tificate. 
 
 Not recall- 
 able in 
 every case , 
 where it 
 
 When anyfraudho,^ been practised by the bankrupt upon 
 the Great Seal, either in obtaining the certificate, or in the 
 course of proceedings under the commission — which is not 
 discovered until after the certificate has been allowed — the 
 Lord Chancellor will in such a case recall it, if it can be 
 done without injury to persons, who have been engaged 
 with the bankrupt in subsequent transactions. ( 1 ) And so 
 also, when any conduct of the bankrupt previous to the 
 issuing of the commission is brought to light, which would 
 of itself render the commission void. Thus where it ap- 
 peared, that a bankrupt had, within a year before the com- 
 mission issued, lost more by gaming in one day, than the 
 sum then limited by the statute. Lord Macclesfield ordered 
 the certificate to be recalled and disallowed. (2) So, where 
 an imposition was practised upon the Great Seal, in the 
 manner in which the certificate was lodged at the bank- 
 rupt office for allowance, — Lord Manners declared his 
 intention to revoke the certificate, (though a period oi three 
 years even had elapsed since the allowance) if, upon in- 
 quiry before the commissioners, it was found that it could 
 be done without injury to other persons. (3) And Lord 
 Eldon also, in one instance, ordered a certificate to be 
 recalled, which had been obtained tim years before ; — where 
 it was discovered, that the commission had been issued 
 fraudtdently by the bankrupt — and that with his connivance 
 debts had been proved under the commission, by the pre- 
 ponderance of which the certificate had been obtained. (4') 
 
 The certificate however, when once obtained, cannot 
 be got rid of in every case in which it might have been 
 stayed. (5) Thus, where the opposing creditor had previously 
 
 (1) Davies, 437. Ex parte Ca^^^- 
 thorne, 2 Rose, 186. Ex parte Tel- 
 lis, 1 Ball & B. 321. 
 
 (2) Lord Cowper and Lord Tal- 
 bot, then at the bar, afterwards 
 gave opinions doubting the power 
 of the Lord C'hancellor to recall 
 the certificate ; but it does not 
 
 20 
 
 appear, that their opinions were 
 ever acted upon. Whitm. 383. 
 
 (3) Ex parte Tellis, 1 Ball & B. 
 521. 
 
 (4) Ex parte Cawthorne, 2 Rose, 
 186. igVes. 260. 
 
 (5) Per Lord Eldon, 6 Ves. 614.
 
 Sect, ^.j OF THE CERTIFICATE. 587 
 
 failed to make out a case upon a petition to stay the certifi- AUoioance 
 Gate, and the bankrupt had been six 7jcars in the possession of ^cUor!^' 
 
 it, and had been suffered to go into the commercial world, 
 
 and involve himself and others in all the consequences ["'^ ^ ^^'' 
 of an extensive trade; — Lord Eldon refused to recall the stayed, 
 certificate, notwithstanding there was strong suspicion of 
 its having been obtained unfairly — and dismissed the peti- 
 tion with costs. (1) So, where a creditor, who had not 
 proved his debt under the commission, applied to the 
 Lord Chancellor after the certificate was allowed, for 
 liberty to inspect all the bankrupt's books, suggesting that 
 he had been guilty of gambling transactions — and the Lord 
 Chancellor had ordered the secretary of bankrupts to look 
 into the books for a particular instance, but none such was 
 found ; — Lord Eldon, upon counsel pressing for further 
 inquiry, said he doubted very much, when a certificate had 
 been allowed, whether a person, who was no creditor 
 under the commission, could come in this way for a dis- 
 covery, to obtain which he might file a bill — and refused 
 the further inspection of the bankrupt's books, for the pur- 
 pose of avoiding the certificate. (2) And, as a certificate will 
 not (as we have seen) (3) be stayed, where the circumstances 
 against the bankrupt amount only to strong suspicion, still 
 less will it be recalled on that account ; for there must be a 
 veri/ clear case established against him, to induce the Court 
 to make an order of the latter description. (4) 
 
 Section IV. 
 
 Of the Practice on Petitioiis to stay the Certificate. 
 
 Petitions to stay the certificate, like other petitions in Signature 
 bankruptcy (5), must, bv a general order of Lord Eldon's, "/P^^*" 
 
 (1) Ex parte Read, Buck. 430. (4) Ex parte Hood, l G. & J. 
 
 (2) Ex parte Mawson^ 6\ei. 219. 
 614. (5) See General Order, 12th 
 
 (5) See ante, oBo. August 1809, and post, "Practice 
 
 on Petitions." 
 
 tioners.
 
 588 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Petitions 
 to stay it. 
 
 Attest- 
 ation. 
 
 When to 
 be pre- 
 sented. 
 
 be signed by all the petitioners before they are presented — 
 except in cases of partnership, or absence from the king- 
 dom ; in the former of which cases, the signature of one of 
 the partners will be sufficient ; and in the latter case, the 
 petition must be signed by the person presenting it on the 
 behalf of the person so abroad. The signature of each per- 
 son must, also, be attested by the solicitor actually presenting 
 the petition, or by some person who must state himself in 
 his attestation to be attorney, solicitor, or agent of the party 
 signing. And the Lord Chancellor will not, unless under 
 very special circumstances verified by affidavit, dispense 
 with the strict observance of this order. (1) The object 
 of requiring the attestation of a solicitor, is to have his 
 pledge and responsibility to the propriety of the appli- 
 cation. Where, therefore, the signature of the petition 
 purported to be " authenticated" not " attestedy^ by his 
 solicitor — who, in fact, had not witnessed the signature, 
 but merely put his name to it from a knowledge of the pe- 
 titioner's hand-writing — the Lord Chancellor thought, 
 that the spirit of the order had in this instance been com- 
 plied with. (2) But an attestation by the agent to the solicitor 
 has been held to be not a compliance with the order. (3) 
 
 The court will not extend the time for receiving a pe- 
 tition for the disallowance of a certificate, which must be 
 presented within the twenty-one days from the notice in 
 the Gazette. (4) For where a motion was made on the 
 last day, that a petition might be received only two days 
 afterwards, (which in fact had been already prepai'ed, but 
 was not properly signed) the motion was refused. (5) And, 
 though the allowance of a certificate may be delayed by a 
 previous petition presented within the twenty-one days, yet 
 if another petition to stay it is presented after the twenty- 
 one days, though during the period of its suspension, it will 
 be dismissed with costs. (6) 
 
 (l) Anon. 1 Rose, 97, Re Bol- 
 
 dero, ibid. 251. 
 
 ('i) Ex parte Title;//, 2 Rose, 83, 
 (.3) Ex parLt Weston, 1 Mad. 75. 
 
 Ex parte Hint, 1 G. & J, 76. 
 
 (4) See ante, 576. 
 
 (5) Ex parte Emmett, 1 Mad. 
 111. 
 
 (6) Ex j)artc Wright, 1 G. & J.
 
 Sect. 4.] OF THE CERTIFICATE. 589 
 
 A petition to stay the certificate prospccliveliji that is, Petitions 
 before the bankrupt has passed his last examination, it ° ^ "^ 
 seems, cannot be supported. (1) 
 
 A copy of the petition, with the Lord Chancellor's As to ser- 
 answer to it, must be per&onalhj served upon the bankrupt vice ot 
 two clear days at the least before the petition day (2), upon 
 otherwise the petition will be dismissed with costs. And, l>ankrupt. 
 though the bankrupt even admits the receipt of a copy of 
 the petition (3), or takes copies of the affidavits in support 
 of it (4<), or files affidavits in answer (5), or even appears 
 to the petition by applying to the court to have the petition 
 advanced in the Lord Chancellor's paper (6), — yet neither of 
 these circumstances is a waiver of his right to be personally 
 served. Neither is it a sufficient excuse, that the omission 
 to serve the bankrupt in proper time was occasioned by 
 the death of the creditor, and that his executor served it 
 as soon as he was legally entitled to act. (7) When the 
 bankrupt is not duly served with the petition, it is not 
 necessary for him to take any notice of it whatever (8); 
 but merely to present a short -petition^ praying that his 
 certificate may be allowed (9); after which, he has a right 
 to call for his certificate on the morning of the petition day. 
 And, where the bankrupt unnecessarily extended this pe- 
 tition, by praying that the petition of the opposing creditor, 
 which had not been duly served, might be dismissed with 
 costs — and thus compelling the creditor to appear upon the 
 hearing, — the Vice-Chancellor refused to give the bankrupt 
 the costs of his petition. (10) The court will, however, 
 where there is a difficulty of meeting with the bankrupt, 
 
 (1) Ex parte Groome, Buck. 39. (6) Ex parte Groome, Buck. 59. 
 
 (2) Ex parte Harford, Buck. 38. (7) Ex parte Cotdboiirn, 2 Rose, 
 Ex parte Hofiey, 1 G. & J. 63. 187. 
 
 2 Jac. & W. 220. (8) Ex parte Kendall, 1 V. & B, 
 
 (3) Ex parte Furnival, 1 G. & J. 543. 2 Rose, 1 1 5. 
 
 254. (9) Ex parte Moore, 1 G. & J. 
 
 (4) Ex parte Kendall, 1 V.& B. 255.; and see 2 Mont. B. L. 154. 
 545. 2 Rose, 115. (10) Ibid. 
 
 (5) Ex parte Harford, supra.
 
 590 OF THE CERTIFICATE. [Ch. 14. 
 
 Petitions make an order (upon the application of the petitioner) that 
 ^JJ!^' service of the petition at the bankrupt's residence shall be 
 deemed good service, — provided the application is made 
 before the petition day ; and if the petitioner is prevented, 
 by the conduct of the bankrupt, from making the appli- 
 cation in proper time, and has used reasonable diligence, 
 the court will then make such order, notwithstanding it 
 is not applied for before the petition day. (1) 
 Affidavit of An affidavit of the service of the petition must be filed, 
 service of ^^^ j^j.^^, ^.j^^^^ ^^ ^^^ j^ ^f jj^g hearing. Where the 
 petition. •' . T 1 
 
 affidavit is imperfect, the court has permitted the petition 
 
 to stand over for an hour for time to file another, and has 
 afterwards directed it to be adjourned, in order to give the 
 bankrupt time to answer ; but if, under such circumstances, 
 the second affidavit is not filed when the petition is ad- 
 journed, and is filed subsequent to the day of the hearing, 
 it will then be treated as no affidavit, and the petition will 
 be dismissed with (2) costs. 
 Affidavit in An affidavit must also be made of the truth of the facts 
 support of aijgggjj j^ jjjg petition ; which latter must state all material 
 facts, so as to make a prima facie case for staying the cer- 
 tificate ; for the petitioner will not be permitted to supply 
 the defect of his original case, by filing affidavits in reply. (3) 
 And it is the general rule of the court, to construe the 
 practice strictly, in favour of the certificate. (4) 
 As to filing By a general order of Lord Loughborough (5), qualified 
 by one of Lord Eldon (6), all affidavits made in support 
 of petitions presented against the allowance of a certificate, 
 must be filed in the bankrupt office at the time wlien such 
 petitions are left in the office, except such affidavits as are 
 necessary to be made in reply to any affidavits made in 
 answer to the petition. And no petition is to be received 
 
 (1) Ex parte Harrison, 1 G. & J. (4) 2 Mont. B. L. 154. and cases 
 71. there cited. 
 
 (2) Ex parte Long, 1 G. & J. (5) 12th April 1796. 
 351. (6) 16th November 1805. 
 
 (3) Ex parte Cundall, 1 G. & J. 
 
 37.
 
 Sect. 4.] OF THE CERTIFICATE. 591 
 
 against the allowance of any bankrupt's certificate, unless Petitions 
 the affidavits in support of such petition are filed when the lljLl 
 petition is left; in default of which, the certificate is to be 
 forthwith (1) allowed and confirmed. 
 
 The term '•'■ Jiling an affidavit'^ is construed to mean the 
 swearinfr and carrying it into the office. (2) 
 
 No affidavit, therefore, in support of a petition to stay a 
 certificate, which is filed after the petition is presented, 
 can be read at the hearing (3); such an affidavit being, 
 from necessity, an exception to the rule applicable to 
 affidavits on other (4) petitions in bankruptcy, viz. that an 
 affidavit, sworn previous to the petition being answered by 
 the Lord Chancellor, is inadmissible in evidence. (5) 
 
 With respect to affidavits in answer, the practice is, to Affidavits 
 hear the petition for staying the certificate, and then for the "^ answer. 
 court to say (6), whether affidavits in answer are necessary. 
 And if the bankrupt do not file his affidavits in answer till 
 after the petition day, the petitioner against the certificate 
 is entitled to have the petition stand over, that he may have 
 an opportunity of replying to any new matter in the bank- 
 rupt's affidavits. (7) 
 
 There is one case, however, in which the strictness both Where 
 of the order as to the filing the affidavit when the petition of nil"^^* 
 is presented, and of the general rule applicable to affidavits to filing 
 on other petitions, seems to have been in some degree de- 'p"^^'^^ 
 parted from. For, where the time for presenting a petition from, 
 expired on the 18th, and a petition was presented on the 
 16th and an affidavit filed — and on the 18th the petitioner 
 gave notice to the bankrupt, that he intended to read some 
 former affidavits made in the same bankruptcy, and anions 
 them, one of the bankrupt's himself — and the Chancellor's 
 order to hear the petition was not made till after the 1 8 th ; — 
 
 (1) And see ex parte Bowes, (5) Ex parte Overton, 2 Rose, 
 
 llVes. 540. 257. 
 
 (2)ExparteiVejf><o«, 2Rose, 19. (6) Ex parte Gardner, 1 Rose, 
 
 (5) Ex parte Dorfio?i, Buck. 178. 578. 
 
 (4) See ex parte Norfliwood, (7) Ex parte Rndclijh, Buck, 
 
 2 Rose, 246. 489.
 
 592 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Petitiom 
 to stay it. 
 
 Petition 
 cannot 
 be with- 
 drawn, 
 without 
 leave. 
 
 As to costs 
 when peti- 
 tion dis- 
 missed. 
 
 As to the 
 hearing. 
 
 Where 
 petition 
 presented 
 in vaca- 
 tion. 
 
 Lord Eldon was of opinion, that the notice being given 
 before the^^a^, it was in time — notwithstanding it was con- 
 tended, that as no new affidavits could have been filed, and 
 the notice was in effect the same as filing an affidavit, it was 
 consequently too late. (1) 
 
 No petition to stay a bankrupt's certificate can be with- 
 drawn without the leave of the court; which will not be 
 granted, unless the parties presenting it make affidavit, that 
 it is not withdrawn from improper motives. (2) 
 
 Where a petition to stay or disallow a certificate is dis- 
 missed, it is generally dismissed with costs ; but cases have 
 occurred where such petitions have been dismissed without 
 costs — on the ground, that although the bankrupt was 
 entitled to his certificate, there were circumstances in his 
 conduct which afforded suspicion of collusion, or which 
 precluded all claim to the indulgence of the court. (3) 
 
 A petition to stay a certificate is an exception to the 
 regular course of proceedings ; and as the granting, or with- 
 holding, it is a question of such extreme importance to the 
 bankrupt, it may be heard out of its turn, upon a special 
 application for that purpose. (4) And where petitions 
 have been presented in the vacation to stay certificates, 
 upon the ground merely that the petitioner'' s debt would 
 turn the certificate — and the bankrupt has contradicted 
 that allegation; — Lord Eldon has referred it to the se- 
 cretary of bankrupts, or the commissioners, to look into 
 the proofs upon the proceedings — with a direction, that if 
 the bankrupt were correct in his contradiction, the certifi- 
 cate should be allowed ; his Lordship thinking, that this 
 was a question which had a strong claim to the early at- 
 tention of the court. (5) 
 
 (1) Ex parte Emmett, 2 Mont. 
 Dig. 1 53. 
 
 (2) Ex parte Gibson, 6 Ves. 5. 
 1 C. B. L. 465.; and see ante, 569. 
 
 (5) Ex parte Black, 1 Rose, 67. 
 note (a). Ex parte Gardner, 1 Ves. 
 
 & B. 45. Ex parte Stevens, Buck. 
 389. 
 
 (4) Ex parte Anderso7i, 1 Rose, 
 93. 
 
 (5) Ex parte Bank of Scotland, 
 1 Rose, 376. iV. &B. 6.
 
 \ 
 
 Sect. .5.] OF THE CERTIFICATE. .>».1 
 
 Section V. 
 When the Certificate is void. 
 
 iirBy section 130.(1) of the new statute, certain cases are 
 specified, where the bankrupt is not only not entitled to his 
 certificate, but where it is declared to be absolutely void, 
 even after it is obtained. They are as follows : 
 ;''lst. When he has lost by any sort of gaming, or waga-- Gaming or 
 mg, in one day 20l. — or, within one year next preceding his ^agcnng. 
 bankruptcy, 200/. Insurance in the lottery was not con- 
 sidered as a gaming within the former bankrupt laws (2); but 
 it is apprehended, that it would now come within the words 
 " ani/ sort of wagering" of the above section. And though 
 the mere keeping a lottery office has been held to be no 
 ground for invalidating the certificate (3), — yet, if the keeper 
 of such office had contracted for any part of the lottery, it 
 seems doubtful, whether this would not have been held 
 such a sort of gaming, or wagering, as would come within 
 the meaning of the above section. But these questions will 
 not often occur again, as lotteries are so soon to be finally 
 abolished by the legislature. Where a plaintiff gives evi- 
 dence of gaming to avoid the certificate, he must elect, 
 whether he will confine his evidence to one loss amounting 
 to 20/,-— or to several losses amounting to 200/. (4) 
 
 2dly. Where the bankrupt has, within one year next Stock- 
 preceding his bankruptcy, lost 200/. (5) by any contract for Jobbing. 
 the purchase or sale of any government or other stock, 
 where such contract was not to be performed within one 
 week after the contract ; or where the stock bought, or sold, 
 was not actually transferred, or delivered in pursuance of 
 such contract. 
 
 (1) This is taken from 5 G. 2. (4) Hughes v. Morley, 1 Holt, 
 c. 30. S.7. 12. 520. 
 
 (2) Lewis V. Picrnj, 1 H. B. 29. (5) The sum was lOO/. in cacli 
 (5) Ex parte Richardson, I C. B. of these cases by the 5 G. 2. c. 50. 
 
 L. 465. s. 12.
 
 594 
 
 OF THE CERTinCATE. 
 
 [Ch. 14. 
 
 When 
 void. 
 
 Destroying 
 or falsify- 
 ing books 
 or ac- 
 counts. 
 
 Conceal- 
 ing pro- 
 perty. 
 
 Bankrupt 
 being privy 
 to proof of 
 false debt. 
 
 3dly. Where, after an act of bankruptcy committed, or 
 in contemplation of bankruptcy, the bankrupt has dc~ 
 stroT/cd, alte?'edf mutilated, or fahified, or caused to be so 
 done, any of his hoolcs, -paper's, "writings, or securities — or 
 made, or been privy to the making of, any false orfraudu- 
 lent entries in any book of account or other document, with 
 intent to defraud his creditors. (1) 
 
 4thly. Where he has concealed, property to the value of 
 10/. or upwards. If a plaintiff, however, seeks to avoid a 
 bankrupt's certificate, by proving concealment to the value 
 of 10/., the defendant may shew that the concealment was 
 not wilful. (2) Where the bankrupt had secreted part of 
 l)is effects — but the circumstances attending the conceal- 
 ment were afterwards, by the examination of the bankrupt 
 and other persons, disclosed to the commissioners — and 
 the whole property had been delivered up to the assignees 
 before the signature of the certificate by the commissioners; — 
 the Vice-Chancellor thought he ought not to stay the cer- 
 tificate on this ground, as the concealment meant by the 
 .5 G. 2. c. 30. s. 7. was a concealment at the time of signing 
 the certificate. (3) And if this decision is correct, there 
 seems to be no reason, why the parallel clause of the 
 new act [section 130.) should not receive the same con- 
 struction. 
 
 5thly. Where, if any person proves a false debt under 
 the commission, the bankru})t (being privy thereto, or 
 afterwards knowing the same) shall not disclose the same 
 to his assignees within one month after such knowledge. (4) 
 
 (1) This is a new provision of 
 the present statute. 
 
 (2) Cathcart v. Blackwood,Dom. 
 Proc. 1765. 
 
 (5) Ex parte Bryanty 1 G. & J. 
 205. 
 
 (4) This provision, which was 
 in substance contained in the 
 24 G. 2. c. 57. s. 9. Mr. Eden says, 
 has been strangely overlooked in 
 proceedings on petition to oppose 
 13 
 
 the certificate; for where the bank- 
 rupt has permitted fictitious debts 
 to be proved, the objection made 
 to the certificate in consequence 
 of such conduct, has often pro- 
 ceeded on the mere ground of 
 its proving that he had not made 
 a complete disclosure. Ex parte 
 Laff'ert, 1 Rose, 380. Ex parte 
 Shirley, 2 Rose, 7 1 . Frcydebuj-gli''^ 
 case, 3 Vcs. & B. 142. 'I'hc harsh
 
 Sect. 6\] or THE CERTIFICATE. 595 
 
 Under this provision, the persons so permitted to prove are ^''"?« 
 admissible witnesses to prove the fraud. (1) " 
 
 Besides the above cases specified in the statute, there Other 
 are also other instances in which the certificate (as we have 
 already seen (2) ) is held to be void in law, on the ground 
 oi fraud ; namely, where money has been given to a cre- 
 ditor either by the bankrupt, or a third person, to induce 
 him to sign it — or to withdraw a petition against it. (3) 
 
 commis- 
 sion. 
 
 Section VI. 
 Of the Effect of the Certificate. 
 
 The certificate, when it is allowed by the Lord Chan- Discharges 
 
 cellor, gives the bankrupt a general release in consequence claims 
 
 ' >=> _ . . . . proveable 
 
 of his certified conformity, discharging him from all debts under the 
 
 due by him when he became bankrupt, and from all claims 
 and demands proveable under the commission. (4) As to 
 the different species of debts, therefore, which the certi- 
 ficate will operate in discharge of, the reader is referred 
 to the respective heads in a former Chapter relating to the 
 proof of debts. (5) 
 
 The certificate, however, will not discharge any person Does not 
 
 who was a partner with the bankrupt at the time of the discharge 
 
 I • • 1 1 1 1 J partners, 
 
 bankruptcy — or who was then jomtly bound, or had made or co-sure- 
 
 any joint contract with him. (6) Neither does a creditor, ties. 
 
 who signs the certificate of surviving partners, thereby 
 
 provision in the 5 G. 2. c.30. s. 12. (I) Edmonstone v. Webb, 3 Esp. 
 
 that a bankrupt should be excluded 264, 
 
 from the benefit of his certificate, (2) Ante, 567- 
 
 if he had, upon the marriage of any (5) Ex parte Gibson, C. B. L. 465. 
 
 of his children, advanced above 1 Mont. 536. ; and see ante, 569. 
 
 100/. — unless he could prove him- (4) Section 121. 
 
 self then solvent — is altogether (5) Ante, 175. 
 
 omitted in the new act. (6) Section 121. This provision is 
 
 taken from the 10 Ann. c. 15. s. 2.
 
 596 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Effect. 
 
 Privilege 
 of proof 
 and dis- 
 charge oi 
 liankriipt 
 co-exten- 
 sive. 
 
 Exception; 
 verdict 
 after bank- 
 ruptcy, in 
 action on a 
 contract. 
 
 A dis- 
 charge, as 
 to surety 
 paying 
 debt, or 
 sustaining 
 damage, 
 after bank- 
 ruptcy ; 
 
 release the estate of a deceased partner. (1) So, though 
 the certificate will discharge one of several covenantors for 
 the payment of an annuity, it will not discharge his co- 
 sureties from the claim of the annuity creditor. (2) 
 
 The privilege of creditors to prove, and of bankrupts to 
 be discharged from debts, is, generally speaking, co-exten- 
 sive and commensurate (3) ; and this principle is adopted 
 by the new act, which (as we have just seen) provides that 
 all claims and demands proveable under the commission 
 shall be discharged by the certificate. There are only one 
 or two exceptions to this general position of Lord Hard- 
 wicke; — but in this, as in other cases, exceptio prohat 
 regulam. One of these is, where a verdict in an action 
 upon a contract is not obtained until after the bankruptcy 
 of the defendant, in which case the costs resulting from the 
 verdict and the judgment are not proveable under the com- 
 mission — although they have been held to be barred by the 
 certificate, as accessorial to the original debt. A plaintiff, 
 therefore, who perseveres in an action against a bankrupt 
 after the issuing of a commission, runs the risk of losing 
 all claim against him for costs, — in case the debt, on which 
 the action is brought, be barred by the certificate. (4) But, 
 with the exception of a case of this description, debts 
 proveable under the commission, and debts discharged by 
 the certificate, may be said to be convertible terms. (5) 
 
 Thus, a surety for the bankrupt, who pays the debt even 
 after the issuing of the commission — as he is now permitted 
 to prove it against the bankrupt's estate(6) — will be barred 
 by the certificate. And he will not only be barred from 
 suing the bankrupt, for the recovery of money paid in dis- 
 
 (1) Sleech\ case, 1 Men v. 570. 
 
 (2) Baxter v. Nichols, 4 Taunt. 
 90. 
 
 (.3) Per Lord Hard wi eke, 1 Atk. 
 119. 
 
 (4) Willeit v. Pringlc, 2N. R. 
 
 196.; and see Lord Eldon's judg- 
 
 ment in ex parte Hill, 1 1 Ves. 649. ; 
 and that of the Vicc-Chancellorin 
 ex parte Poucher, 1 G. &J. 386. 
 
 (5) Bamford v. Burr ell, 2 B. & 
 P. 11. 
 
 (6) Section 52.
 
 Sect. 6.] OF THE CERTIFICATE. 597 
 
 charge of the debt — but also from suing him for any con- Effect. 
 sequential damage, accruing from the nonpayment by the 
 bankrupt of such debt. As, where an acceptor of an accom- 
 modation bill broutjht an action a<»ainst the drawer (who 
 had become bankrupt) for not providing him with funds 
 to pay the bill when due, whereby he had incurred the 
 costs of an action, and was obliged to sell an estate in order 
 to raise money to pay the bill, — the certificate was, in this 
 case, held a good bar to the action. (I) But the certificate but only 
 will only discharge the bankrupt from the claims of the ^^^^nj 
 surety, as to those debts which the bankrupt awes at the time owing at 
 of his bankruptcy; therefore, where a surety for payment of time ot 
 the bankrupt's rent paid arrears which became due after the ruptcy. 
 hankniptcy, the certificate was held no bar to an action 
 against him by the surety for repayment of such ar- 
 rears. (2) 
 
 The certificate, however, does not discharge a bankrupt Certificate 
 
 from a debt due to the Cronm ; for as the Crown is not does not 
 
 bar the 
 bound by any statute, unless specifically named (3) — and crown; 
 
 the King's debt is not mentioned, among those of the cre- 
 ditors in general, in any part of the statute relating to the 
 proof of debts or the certificate, — the Crown, of coiu'se, 
 will not be barred of the peculiar privileges it possesses for 
 the recovery of its own debts. 
 
 Nor is a bankrupt discharged by his certificate from his nor dis- 
 own express collatei-al covenant of indemnity, which is not charge a 
 broken before his banhniptci)^ unless, indeed, there can be a covenant, 
 
 value set upon the subject matter of it under the bQth section, "f. ^oml 
 
 ^ , 111 1 . , .« ot indem- 
 
 Therefore, where the bankrupt covenanted to indemnify ^ity. 
 
 the assignor against covenants contained in a lease, which 
 
 was assigned to the bankrupt before his bankruptcy, — it 
 
 was held, that as this was a distinct and collateral cove- 
 
 (1) Vansandany. Corsbie, 3 B. & 584. 2 Moore, 644.; and see ante, 
 A. 15. Wood\.Dodgson,2M,.&.^. Chap. IX. Sect. 21. 
 
 195. (5) Rex V. Pu-let/, Bunb. 202. 
 
 (2) M'Dougul v. Palon, 8 Taunt. 1 Atk. 262. 
 
 <^8 3
 
 598 OF THE CERTIFICATE. [Ch» 14<_ 
 
 Bfect. nant, in respect of which the assignor could have no 
 remedy under the commission, — the bankrupt was not 
 discharged by the certificate. (1) And in a similar case, 
 where the bankrupt gave a bond of indemnity to the lessee — 
 which was in fact forfeited before the bankruptcy by rent 
 becoming in arrear, but the lessee had not actually paid the 
 rent to the lessor, — it was held, that the certificate was no 
 bar to the claims of the lessee — on the ground that a bond 
 of indemnity against breaches of covenant is incapable of 
 valuation, it being impossible to calculate how far the ob- 
 ligee may be damnified by any future breaches ; and that 
 the bond, therefore, in this case could neither be proved in 
 respect of the penalty — nor could the lessee prove in re- 
 spect of the rent in arrear, without having first paid it to 
 the lessor — even if such a partial proof under a bond of 
 indemnity could in strictness be admitted. (2) 
 Certificato The certificate also does not, o/' itself, protect the bank- 
 not an ab- Y^^^^ from an action of covenant, or assumpsit, by a lessor 
 protection for non-payment of rent due after the bankruptcy — tor 
 
 against which he has become liable either as lessee (3), or even as 
 liability on . ,. i i / x ti i i , • ,> i 
 
 a lease; assignee or the lessee. (4) liut by the 75m section oi the 
 
 unless as- new statute it is declared, that any bankrupt entitled to 
 
 '^'^"^Tthe ^^y ^^^^^' ^^ agreement for a lease, if the assignees accept 
 
 term ; the same, shall not be liable to pay any rent accruing after 
 
 the date of the commission ; or be sued in respect of any 
 
 subsequent non-observance, or non-performance, of the 
 
 conditions, covenants, or agreements therein contained. (5) 
 
 or the And if the assignees dechne the same, then the bankrupt 
 
 will not be liable, in case he deliver up such lease or 
 
 bankrupt 
 deliver the 
 
 (1) Mat/or V. Steward, 4 Burr. (5) This provision was first in- 
 2446. Ludford v. Barber, 1 T. II. troduced into the bankrupt law b}' 
 86. the 49G.O. c. 121. s. 19. but the 
 
 (2) Taylor v. Young, 3 B. & A. following part of it is new, and 
 521. 8 Taunt. ."18. 2 Moore, 526. seems but a just provision to re- 
 Co) Milk V. Auriol, I H. B. 45.'5. lieve the bankrupt from his liabi- 
 
 4 T.R. 94. Bootv. Wilson, 8 E-dit, lity, in case the assignees reluse 
 
 51 1 . the lease. As to what will amount 
 
 (4) Copeland v. Stephens, 1 B. & to an acceptance of the lease by 
 
 A. 59o. the assignees, see zute,o9o.
 
 Sect. 6.] OF THli CERTIFICATE. 599 
 
 agreement to the lessor, or to such peison agreeing to Effect. 
 
 grant a lease, within fourteen days after he shall have had ^^^^^ ^^ 
 
 notice that the assignees shall have declined as aforesaid, the lessor. 
 
 This section, however, only applies to cases between the Exception 
 
 lessor and lessee^ and does not extend to cases between the f " ^i ^^' 
 ' _ ^ , tends to 
 
 lessee and the assignee of the lease. Therefore, where an cases be- 
 
 assienee of a lease gives a bond of indemnity to the lessee t^een les- 
 
 to protect hnn from the future non-payment of the rent, or hstee. 
 
 non-performance of the covenants, and afterwards becomes 
 
 bankrupt, — his certificate will not, as we have just observed, 
 
 protect him from an action on the bond by the lessee, even 
 
 though the breach declared upon took place before the 
 
 bankruptcy. (1) 
 
 There must be some express act done by the assignees to An express 
 
 manifest their assent to the assignment as it regards the ^^^:„„„„, 
 
 o o assignees 
 
 term, and their acceptance of the lease ; for the general necessary 
 assignment of the bankrupt's personal estate under the t^i'^.'^^ „{. 
 commission does not, without such acceptance on their to take the 
 part, vest a term of years in the assignees. (2) Therefore, ^^*^* 
 until some act of this sort is done by them, the term still 
 remains in the bankrupt, even though he was but himself 
 the assignee of the lease; and his certificate will not pro- 
 tect him from the payment of rent accruing due subsequent 
 to the bankruptcy. (3) If the assignees decline to take the 
 lease, the bankrupt can (as we have seen) now exonerate 
 himself, by delivering up the lease to the lessor within four- 
 teen days after notice of the assignees' declining it. But, if 
 the assignees neglect to determine whether they will When 
 accept, or decline it, there is no express power given by assignees 
 the statute to the bankrupt (as there is to the lessor) to determine. 
 
 (1_) Taylor \. Young, oB. &A. vesting it absolutely in the assig- 
 
 521. neesunder the commission. Mai/or 
 
 (2) This does not appear to have v. Steivard, 4 Burr. 2443. per Yates 
 
 been formerly the doctrine held J. Cantril v. Graham, Barnes, 6'9. 
 
 by the courts, which inclined to Wadham v. Marloive, 8 East, 314. 
 
 the opinion, that the commission note (c.) Per Lord M. 
 
 and the proceedings under it ac- (5) Copeland v. Stephens, 1 B. 
 
 tually dispossessed the bankrupt of & A. 591. 
 his whole estate, transferring and 
 
 O O 4-
 
 600 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Effect. 
 
 Bankrupt's 
 liability as 
 lessee, once 
 got rid of, 
 not re- 
 newed. 
 
 Quaere as 
 to certifi- 
 cate dis- 
 charging 
 bankrupt 
 from pay- 
 ments 
 made on 
 cross ac- 
 ceptances. 
 
 No dis- 
 charge of a 
 promise to 
 pay a 
 weekly 
 sum for an 
 illegiti- 
 mate child; 
 
 apply to the Lord Chancellor for an order on the assignees, 
 to elect whether they will take the lease or not ; though 
 there seems to be no reason why the Lord Chancellor 
 should not, under his general jurisdiction in bankruptcy, 
 as well indeed as under the equity of the statute, have 
 power to make such an order, when circumstances call for 
 it on the part of the bankrupt. 
 
 As the certificate discharges the bankrupt from all cove- 
 nants in the lease, if the assignees accept it — his liability to 
 the lessor will not be renewed (except as an assignee of 
 the term), though he comes into possession of the premises 
 afterwards under an assignment from his assignees. Thus, 
 where A. granted a lease to B., which contained a covenant 
 that B. should not underlet without the consent of A. — and 
 B. having become a bankrupt, his assignees assigned the 
 premises to C, who re-assigned them to B. after he had 
 obtained his certificate — after which B. underlet the pre- 
 mises to another person ; — it was held, that B. having been 
 discharged by his bankruptcy from all the covenants as 
 lessee, the underletting by him was no (1) forfeiture of the 
 lease. 
 
 Where two parties exchanged acceptances, and both 
 became bankrupt at a time when all the bills were in circu- 
 lation — and the assignees of one party, besides paying di- 
 vidends to the full amount of that party's acceptances, had 
 also paid dividends on account of the acceptances of the 
 other, — the Court of King's Bench were equally divided 
 in opinion on the question, whether the assignees could 
 maintain an action to recover such surplus dividends from 
 the other party, notwithstanding his certificate. (2) 
 
 The certificate has been held no discharge to a bankrupt 
 from an action o^ assumpsit, on a promise to pay the plaintiff 
 a weekly sum for the support of the bankrupt's illegitimate 
 child, except as to the arrears accruing heforc the bank- 
 ruptcy; for the promise was considered to be of such a 
 
 (1) Doe V. Smith, 1 Marsh. 359. 
 5 Taunt. 795. 
 
 (2) Cowley V. Dtmloj), 7 T. R. 
 565.
 
 Sect. 6.] OF THE CERTIFICATE. 601 
 
 nature, as not to admit of an aggregate value being set Effect. 
 upon it for the purpose of proof; the future arrears, there- 
 fore, being not proveable under the commission, were of 
 course not discharged by the certificate. (1) So the certi- o"" ^^ ^ 
 ficate is no discliarge of a bastardy bond, as to the bank- [j'onj. 
 rupt's liability for further expenses, incurred by the parish 
 officers subsequently to tlie bankruptcy (2); for this is not 
 like the case of an annuity, which can be set a value upon, 
 and where an estimate is made only of the duration of life ; 
 but, in this case, the expenses for which the party is liable 
 may vary, in consequence of the sickness of the child ; and 
 the contingency will be, not only the duration of life, but 
 on the continuance of health, which is subjected to every 
 accident of human life, and the most precarious and un- 
 certain event possible. 
 
 The certificate, as we have seen (3), has no operation Certificate 
 nntil it is allowed by the Lord Chancellor ; nor has it, operation 
 when allowed, any relation back to an earlier period, until ac- 
 Thus a legacy (as has been before stated (4) ), which devolves ^ «ylow- 
 upon a bankrupt pending a petition to stay the certificate, nor any 
 though the petition was in fact unfounded, and the certi- J"'^'^^''^" 
 ficate was afterwards allowed, goes to the assignees ; unless, 
 indeed, the petition was presented with the express object of 
 delaying the certificate. (5) 
 
 So, though the bankrupt's bail will be discharged, if he As to clis- 
 obtains his certificate before they are fixed, yet they will ^^^y ° 
 not bo discharged if they are fixed before the certificate is 
 allowed ; for in that case a new debt arises, which is their 
 own proper debt, distinct from the original debt of the 
 bankrupt, and therefore not discharged by the discharge of 
 the original debt. (6) Formerly, where the bankrupt ob- Mode of 
 tained his certificate pending an action against him, before fp'T'^^ ' 
 
 {\)Miller\.Whittenburyy\(^Q.mp. (4) Ante, 385. 
 
 428. (5) Ex parte Anscll, 19Ves. 208. 
 
 (2) Oveiseers of St. Martin in (fi) Wuolley v. Cobbe, I Burr. 
 the Fields V. Warren, 1B.&A.491. 244. Cockcrill\. Owston,ihu\.43G. 
 1 Star. 188.; and see Davies v. ]Vall:crv.Giblett,Yi\.S\\. Mannin 
 Arnoit,3\i\ng.\5i. v. Partridge, 14 East, 599. Sta- 
 
 (3) Ante, 575. pleton v. Macbar, 7 Taunt. 589.
 
 602 OF THE CERTIFICATE. [Ch. 14. 
 
 Effect. the bail were fixed, the practice was for the bail to sur- 
 render the defendant — and then for him to apply to be 
 discharged, upon an affidavit stating the fact of his having 
 beconle a bankrupt since the cause of action arose, and 
 having since obtained his certificate. But now, where a 
 bankrupt is clearly entitled to his discharge, the courts (or 
 a judge on summons) to avoid circuity, will order an 
 cxoneretur to be entered on the bail-piece without the form 
 of a regular surrender. ( 1 ) If the bail do not apply to enter 
 an exoncrehir till after the money is levied upon them, 
 When an they can only be relieved upon payment of costs. (2) And 
 be granted. ^^^ courts will not wholly exonerate the bail, without giving 
 the plaintiff in the action an opportunity of trying by an 
 issue, whether the certificate was fairly obtained (3); but 
 they will not grant an issue to try the fact of the bankrupt 
 being a trader ; for the certificate itself is, by the statute (4), 
 made evidence of the trading. (5) In the case of a foreign 
 certificate, however, they will direct an issue to ascertain 
 the circumstances under which the debt was contracted, 
 from which the bail contend to be discharged. (6) The 
 proper mode for the bail to avail themselves of the certi- 
 ficate of their principal, when they are sued upon their 
 recognizance, is not to plead such certificate in their dis- 
 charge — but to apply for relief to the summary jurisdiction 
 As to bail of the court. (7) Bail in error are not entitled to relief^ 
 in error. although the bankrupt obtains his certificate pending the 
 writ of error ; for bail in error cannot (like bail to the 
 action) surrender their principal in discharge of their 
 When bail liability. (8) Neither are bail of any description discharged 
 
 not dis- j^ ^^ bankrupt's certificate under a second commissioru 
 charged by •' * 
 
 (1) Palrnby v. Masters, Barnes, (5) Harmer v. Haggcr, 1 B. & 
 568. Martin V. O'Hara, Cowp. A. 332. 
 
 82.3. 1 Tidd. Pract. 280. Todd v. {6) Bamjieldv. Anderson, SMoove, 
 
 Maxfield, 3 B. & C. 222.; and see 531.; and see post, 530. 
 
 post, "Of Pleading theCertificatc." (7) Donnelly v . Dunn, 2 Bos. & 
 
 (2) Mannin w Partridge, ^\i\)n. P. 45. Beddomev. Holbrooke, lHo^. 
 
 (3) Woolcoty. Leicester, 6 Taunt. & P. 450. note (b). 
 
 75. (h) Soiithcotc V. Braithivaile, 1 T. 
 
 (4) Scclion 1,26. R. (524.
 
 Sect. 6.] OF THE CERTIFICATE. 603 
 
 where he has not obtained liis certificate under the first ; Effect. 
 
 for as a second commission against an uncertificated bank- (-ertificate 
 
 rupt is void, a certificate under such a commission will not under a 
 
 entitle the bankrupt to be discharged, and the bail can ^^'^'^'^^ 
 " . . comniis- 
 
 never be in a better situation than the principal. (1) sion. 
 
 Where a bankrupt has obtained his certificate, he is Certificate 
 
 competent to justiiy as bail in an action; his recent bank- bankrupt 
 
 ruptcy being not ot" itself an objection to his so doing. (2) to justify 
 
 as hail. 
 
 The effect of a certificate under an English commission As to dis- 
 
 of bankrupt, upon a debt contracted in a foreisni country — ^ f^^. ^ 
 
 and the effect also given here to a foreigyi certificate, with debt under 
 
 respect to a debt contracted either abroad, or in England — ^" li^nglish 
 ^ . . certificate, 
 
 are questions of a very complicated nature; and involve ot vice 
 
 many considerations of international law, which, it is far '"'^'''^'^- 
 beyond the scope of the present treatise, to discuss in the 
 manner due to the importance of the subject. The cases, 
 which are to be met with in the books, principally relate to 
 the operation of a foreign certificate in this country — in- 
 stead of tlie effect produced by an Eiiglish certificate upon a 
 foreign debt — this last question, however, being one that 
 is more immediately connected with the object of the pre- 
 sent work. 
 
 A certificate obtained under an English commission of Certificate 
 bankrupt, as it now discharges the bankrupt from all claims "" jJ", 
 and demands made proveabie under the commission (8), conunis- 
 will operate (as it should seem) in this country at least, to sion, 
 discharge any debt contracted abroad — provided the debt 
 was a proveabie debt, and the foreign creditor had an op- 
 portunity of proving it under the commission. And upon a discharge 
 this principle, it is said to have been determined by the i"„j^° ' 
 court of session in Scotland, that a certificate under an 
 English commission would be a discharge the7e of every 
 debt that could be proved under the commission, whether 
 
 (i) Martin v. (yUura, Cowp. (2) Smttli v. liobcrls, 1 Cliitt. 
 825. Kcp. 9. 
 
 (•3) Seciton llil.
 
 604; OF THE CERTIFICATK. [Ch. 14. 
 
 Effect. E7iglis/i, or Scotch. ( 1 ) It is said, however, in some of the 
 
 l~~ T" books, that a certificate under a commission in England 
 
 operation will not bar a debt contracted in the West Indies (2), on 
 
 on a debt ^^^ authority of an opinion given by Lord Talbot, when at 
 
 contracted *' ^ . 
 
 in the the bar, to this purport : viz. that notwithstanding the 
 
 colonies, eifects of the bankrupt in the colonies are liable to a com- 
 mission here, and the right is vested in the assignees — 
 and though it might seem reasonable that his certificate 
 should be equally extensive — yet, as the Bankrupt laws of 
 England were made since the West Indian colonies were 
 settled, and therefore did not extend to them unless they 
 were expressly named, — he was of opinion, that a certi- 
 ficate, thougli confirmed here, would be no discharge to 
 the bankrupt, if a suit was commenced against him in Bar- 
 badoes. But in a case, which was not long ago decided at 
 the cockpit, upon an appeal from the col^mial court of 
 Demerara, it was determined (consistently as it seems with 
 the above decision by the court of session in Scotland), 
 that a certificate under an English commission, where the 
 creditor had Jull notice of the commission, was a bar to a 
 suit instituted in the colonial court for the recovery of a 
 debt — the consideration for which debt was goods con- 
 signed by the plaintiff from Demerara to the defendant 
 and his partner in London, for which the latter had ac- 
 cepted bills before their bankruptcy, having also engaged 
 by letter to accept others, which were not presented till 
 after the bankruptcy. (3) And, indeed, it seems but just, 
 (as Lord Talbot admitted in his opinion above cited) that 
 the effect of the certificate should be co-extensive with the 
 assignment ; for, if foreign courts allow the assignees under 
 an English commission to strip the bankrupt of his foreign 
 
 (l) Bank of Scotland \. Cuthberf, decided, too, is said to be still siib 
 
 1 Rose, 486.; and see Cullen, 398. jiidice, though the decision took 
 
 According to Mr. Bell, however, place so long ago as January 1813. 
 
 (Bell Com. 693. n.) the bills of ex- Eden's B, L. 396. 
 change in this case being accepted (2) Beawes Lex. Mer. 4th ed. 
 
 bythe drawees inEngland, the debt 543. Davis B. L. 439. C.B.L.500. 
 was considered as an English debt (3) Odwln v. Forbes, Buck, 57. 
 (and see post, 606). The point
 
 Sect. 6.] OF THE CERTIFICATE. 605 
 
 property, by giving effect to the assignmeiit in their juris- Effect. 
 diction, they ought with equal reason to give effect to the 
 certificate^ and not leave the bankrupt liable to the actions 
 of the foreign creditors. ( 1 ) 
 
 With respect to the operation of a. foreign certificate in Operation 
 this country, the English courts are guided by the ques- /ff'^f"^ 
 tion, 'iv/iere the debt ivas contracted^ which the foreign certi- 
 ficate is set up to bar. If it was contracted in the same 
 country where the discharge took place, the law of that 
 country is held to prevail, and the debt therefore becomes 
 extinguished (2) ; and this, as Lord Mansfield said, upon 
 the general principle, that where there is a discharge of a 
 debt by the law of one country, it will be a discharge in 
 every otlier ; and he added, that he remembered a case in 
 Chancery of a cessio bononim in Holland, which, being a 
 discharge in that country, was held to have the same effect 
 here. (3) 
 
 It becomes, therefore, important to consider in the In what 
 course of this inquiry, under what particular circumstances j^hf^h^i? 
 a debt will be held to be contracted in a particular country, to be ccm- 
 In the case before Lord Mansfield, the demand arose upon ^''"^t^'^- 
 a bill of exchange drawn in Ireland, and paijable by the 
 
 (I) Mr. Eden thinks, that the land,See post, 606.); for, though the 
 
 only true ground upon which this consideration for the debt was the 
 
 case can be supported is, that by goods sent from Demerara, the 
 
 the Dutch law (according to which debt itself, in virtue of the accept- 
 
 the Court professed to proceed) all mice of the bills, might be said to 
 
 foreign debts are barred by a Dutch have been contracted in England, 
 
 dischai'ge; and that, as the debt (2) Burrows v.Je7mno,iiti\ 152. 
 
 was in this instance a colonial, and 2Eq. Ab. 524. Mosley, I. Ballan- 
 
 not an English debt, the decision tine v. Golding, C. B. L. 464. 499. 
 
 was, upon the general reasoning Potter v. Broivn, 5 Y.a&t,\2'i. 
 
 given in the judgment, quite un- (5) The cessio bonorum in Hol- 
 
 tenable. But though the principle land, however, seems (like the same 
 
 of reciprocity and mutual comity proceeding among the Romans) to 
 
 formed,certainly, one of the grounds be a discharge of the person only, 
 
 for the judgment in that case, it is and not of the effects, except as to 
 
 not so clear, that the debt was some few trifles of wearing apparel, 
 
 considered to be a colonial debt, &c. See Voet on the Pandects, 
 
 according even to the principle of 2tom. lib. 42. tit.. 3. andLordHard- 
 
 Walson v. Renton, (one of the cases wicke's jiidgmer.t in ex parte Bur- 
 
 cited by Mr. Eden from Bell's ^h, lAtk.255. 
 Commentaries on the Laws of Scot-
 
 606 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Effect. 
 
 Semble, 
 that a 
 foreign 
 certificate 
 is no dis- 
 charge of 
 an English 
 debt. 
 
 defendant, who resided in Ireland, and who had obtained 
 a certificate under an Irish commission ; this, therefore, was 
 decidedly a foreign debt discharged by a foreign certificate. 
 The genei'al principle indeed (in the case of a debt arising 
 on a bill of exchange) seems to be, that the country where 
 the bill is accepted and paid, is the country where the debt is 
 contracted. Thus, a bill of exchange, (though drawn by the 
 defendant in Ireland) which was accepted and paid by the 
 plaintiiFs in England, was determined by the Court of 
 King's Bench to be an English debt, and therefore not dis- 
 charged by a certificate under an Irish commission. (1) And 
 in like manner, the Scotch courts have holden, that bills 
 accepted by the drawees in England constituted an English 
 debt (2); and even that a bill drawn from New York upon 
 Greenock, which was not accepted, was a Scotch debt, and 
 consequently not discharged by the bankrupt's certificate in 
 New York. (3) So, where goods were consigned by a mer- 
 chant in Scotland to one in England — and a bill, payable 
 at Berwick, was given for part of the goods — the bill, in 
 this case, was held by the Scotch courts to be an English 
 debt — while the general balance of the same debt, resting 
 on the conti'act of sale, was considered as Scotch. (4) 
 
 The result deducible from all these cases, seems to be, 
 that a foreign ccrtijicate is no bar to an action in England 
 for an English debt -, nor is an English certificate considered 
 in Scotland a discharge of a debt wholly contracted there ; 
 for the courts of both countries appear to agree in their 
 decision (at least with respect to bills of exchange) as to 
 the circumstances, under which the debt is to be considered 
 a foreign, or a home-cofitracted, debt. And the reasoning of 
 Lord Kenyon, in giving judgment upon a point of this 
 description, appears to be quite unanswerable ; for it is 
 impossible (as he observed) to hold, that a contract made in 
 
 ( 1 ) Lctvis V. Owen, 4 B. & A. 6 54. 
 
 C2) Banic of Scotland \. Cuthberl, 
 
 1 Rose, 4G2,; and sec 2 BcJl Com. 
 
 (5) Armour v. Camf}hcU, cit. ibid. 
 sFac. Coll. 417. 
 
 (4) Watson V. Rcnion, 2 Bell 
 Com. 69.~.
 
 Sect. G.] OF THE CERTIFICATE. 607 
 
 one country is to be governed by the laws of another : and Efcct. 
 he puts the case (as that was) of a contract lawfully made 
 by a subject in this country, which he resorts to an 
 English court of justice to enforce — and the only answer 
 given is, that a law has been made in a foreign country 
 to discharge the defendants from their debts, on condition 
 of their relinquishing all their property to their creditors. 
 " But (he adds) how is that an answer to a subject of this 
 '• country suins; on a lawful contract made here? How can 
 " it be pretended, that he is bound by a condition, to 
 "which he has given no assent either express (1), or 
 « implied ?" 
 
 A discharge, however, under a sequestration in Scotland Operation 
 
 issued against a trader residino- there, in conformity to the °, "^' 
 
 _ *=> o ' J charge 
 
 provisions of the Scotch bankrupt act (the 54 G. 3. c. 137-) under the 
 
 has been held to be a bar to an action against the trader p'^'^tch 
 
 . ., . bankrupt 
 
 here, on a debt contracted in England, in like manner as it act. 
 
 is a bar to debts contracted in Scotland. (2) This decision, 
 however, was expressly founded upon the effect of that par- 
 ticular statute, and not upon any general principle. (3) 
 
 When a foreign certificate is set up in discharge of an Effect of a 
 action in this country, the courts think it a point of too certilcat 
 much importance to be decided in a summary way (4) ; not de- 
 
 they will, therefore, refuse an application for an exoiier- ^'"^^> 
 J ^ ' itr upon a 
 
 ettir to be entered on the bail-piece, on the ground of the summai-y 
 defendant's discharge in the foreign country — and will di- ^.PP"'^^- 
 rect an issue, in order to ascertain the circumstances under 
 which the original debt was contracted. (5) 
 
 Where an execution was levied against the goods of a Certifi- 
 
 bankrupt, for a debt which existed previous to the bank- ^J^^*^' ^^' 
 
 , . , • r> , • , foreallow- 
 
 ruptcy- — and, previous to the execution oi the writ, the ance, does 
 
 (1) Smith V. Buchanan, 1 East, (4) P odder v. Macmaster, 8 T. 
 <>.; and see Qnin v. Keefc, 2 H. B. R. 610. 
 
 553. (5) Bamficld v. Anderson, 
 
 (2) Sideawat/ v. Hay, 3 B. & C. 5 Moore, 331. Qidn v. Keefe, 2H. 
 12. B. 553. 5 Moore, 244. Whilting- 
 
 (3) Ibid. 25.; and see ex parte ham v. De la liic.sc, 2 Chit. Rep. 
 ti'rddex, 1 G. &- J. 4 1 4. '". Barrier v. Languiihe, iliid. 55.
 
 608 
 
 OF THE CERTIFICATE. 
 
 [Ch. U. 
 
 Effect. 
 
 not inva- 
 lidate an 
 execution 
 levied. 
 
 Certificate 
 discharges 
 all debts, 
 whether 
 joint, or 
 separate. 
 
 A dis- 
 charge of 
 the consi- 
 deration 
 for an 
 annuity. 
 
 Operation 
 of certifi- 
 cate dis- 
 charged 
 where 
 bankrupt 
 has been 
 
 bankrupt's certificate was signed by sufficient in number and 
 value of the creditors, but it was not allowed by the Lord 
 Chancellor until after the writ was executed, — the exe- 
 cution was held, under these circumstances, to be valid. (1) 
 Mr. Cooke, however, adds a quaere to this case, whether 
 the goods could legally be considered as the bankrupt'' s, 
 the property of an uncertificated bankrupt belonging to 
 his assignees. But it seems to be now clearl}^ settled, 
 that although property acquired by an uncertificated bank- 
 rupt may be taken from him by his assignees, yet it does 
 not absolutely vest in them ; and if they make no claim to 
 it, the bankrupt has a right to retain it against all other 
 persons. (2) 
 
 The certificate discharges the bankrupt from all debts, 
 whether joint or separate — and whether the commission, 
 under which it is obtained, is a joint or separate commis- 
 sion ; for the debts, which a man o-wes jointly with another, 
 are in law as much his own debts, as those which he owes 
 on his sejjarafe account. (3) 
 
 Where an annuity was granted for a sum paid as a 
 consideration, and the grantor became bankrupt — and after- 
 wards the annuity was set aside, — the certificate was held a 
 bar in an action against the grantor for money had and 
 received — on the ground, that the annuity having been set 
 aside, was to be considered as if it had never existed — and 
 that the relation took place to the time when the money 
 was paid, the plaintiff's title to the money accruing from (4) 
 that time. 
 
 Where the bankrupt has been already discharged by a 
 certificate under any former commission, or has previously 
 compounded with his creditors, or been discharged by any 
 insolvent act, it is declared by section 127.(5) of the new 
 
 (1) Cullen V. M^rick, 1 T. R. 
 361. 
 
 (2) Drayton v. Dale, 2 B, & C. 
 293.; and see ante, 555. 
 
 (.5) Ex parte Yale, 3 P. Wms. 
 as. note (A). Horset/'s case, ibid. 
 2.7. 7'wiss v. Masscy, 1 Atk. 61. 
 
 Wiclees v. Sfrahan, 2 Str. 1157. 
 Howard v. Poole, ibid. 995. Grace 
 V. Higham, Fitz. 281. 
 
 (4) Walker v. Liscarry, 6 Esp. 
 9S. 
 
 (5) And see 5 G. 2. c, 50. s. 9.
 
 Sect. 6.] OF THE CERTIFICATE. 609 
 
 Statute, that the certificate will only protect his person from Effect. 
 
 arrest, unless his estate (after all char";es) shall produce , \ 
 ' \ o ' r already 
 
 sufficient to pay every creditor under the commission I5s. dischar<red 
 in the pound : and his future estate and effects (except his ""'''^'' '* 
 tools of trade and necessary household furniture, and the commis- 
 wearing apparel of himself, his wife and children) will now '^"^"• 
 vest in the assignees under the second commission, whi) 
 will be entitled to seize the same, as they might have 
 seized property of which he was possessed at the issuing of 
 the commission. 
 
 With respect to that part of the above clause which relates Operation 
 to a 'previous bankriiptci/, it will be seen, that the provision (as ^^\^^^^ 
 to the liability of the bankrupt's future effects) is very differ- as to a 
 ent from the construction put, in most of the cases hitherto C'^^ u^"* 
 decided, upon the 5 G.2. c. 30. s. 9. — by which construction ruptcy. 
 any creditor, though he had even signed the certificate 
 under the second commission, was (before the 49 G. 3. 
 c. 121. s. 14.) enabled to bring an action against the bank- 
 rupt, and recover against his future effects. (1) The clause 
 in the new act does not say that the future estate and effects 
 shall be liable to the creditors generally, but declares ex- 
 pressly, that they shall vest i7i the assignees under the second 
 commission, unless 15s. in the pound is paid; so that — in- 
 dependently of the construction of the 59th section of the 
 new statute (which is taken from the 4th section of the 
 49 G. 3. c. 121.), by which the proving a debt under a 
 commission is declared to be deemed an election by the 
 creditor to take the benefit of the commission, with respect 
 to the debt so proved (2) — no individual creditor, who has 
 even not proved his debt, can now with any effect (as he 
 could under the 5 G. 2.) sue the bankrupt after he has ob- 
 tained his certificate; for his person is protected by his 
 
 (l) PhUpott V. Corden, 5 T. R. Ex parte jBa^<?r, 1 Rose. 452, Ex 
 
 287. GiU\. Scrivens, 7 T. R. 27. parte Hodgkinson, 2 Rose, 172. 
 
 Jelfs V. Ballard, 1 Bos. 467. Ed- 19 Ves. 291. 
 
 monson v. Parker, 3 Bos. &P. 185. (2) Read v. Sowerbij, 3 M. & S. 
 
 Coverly v. Morlcy, 16 East, 225. 78. 
 HovUl V. Broumhig, 7 East, 159. 
 
 R U
 
 610 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Effect. 
 
 Of certifi- 
 cate under 
 second 
 commis- 
 sion, when 
 the first 
 has been 
 supersed- 
 ed. 
 
 Cognovit 
 given two 
 years be- 
 fore se- 
 cond corn- 
 
 certificate; and an execution would be of no avail against 
 his effects, which are declared by the statute to be vested 
 in the assignees. The only remedy, therefore, to render 
 such future effects available is the power given to the 
 assignees in the latter part of the above section, enabling 
 them to seize the effects in the same manner, as they 
 may seize his other property at the issuing of the com- 
 mission. All the cases, however, as to this point, which 
 have been decided upon questions between the bankrupt 
 and the creditors generally, will still be applicable to future 
 questions between the bankrupt and the assignees under the 
 second commission. (1) 
 
 A certificate under a second commission, (although the 
 first commission has been even superseded with the consent 
 of the creditors) it has been held, will not protect a bank- 
 rupt's future effects, unless 155. in the pound are paid under 
 the second commission (2) ; for the question is, as Lord 
 Mansfield put it, whether a supersedeas can make a thing 
 not to have been done, which in fact has been done, namely, 
 the bankrupt's discharge under the first commission ; and 
 even if the first bankruptcy was to be considered as never 
 having existed, yet if the creditors have accepted a dividend 
 under the first commission in lieu of their whole debt, they, 
 at any rate, would then be taken to have compounded for 
 their debts within the meaning of the statute. (3) 
 
 "Where a defendant in an action gave the plaintiff a 
 cognovit for the amount of the damages — and two years 
 afterwards a second commission of bankrupt issued against 
 the defendant, under which he obtained his certificate, but 
 
 (l ) It seems that a different con- 
 struction from that laid down in 
 Hovil V. Browning, and the sub- 
 sequent cases, was formerly put 
 upon the 9th section of the 5 G. 2. 
 c. 50. {Ashley v. Hill, 2 Christ. 529. 
 Davies, 515.) by which it was held, 
 that the future estate of the bank- 
 rupt actually vested in the assignees 
 under the second commission, if he 
 
 didnot pay 155. in the pound. And 
 this construction, Mr. Eden thinks, 
 ought to have prevailed in Hovil v. 
 Browning, instead of holding, that 
 any individual creditor might sue 
 the bankrupt under the second 
 commission, Eden, 394. 
 
 (2) Thornton v. Dallas, Doug. 
 46. 
 
 (>) 1 Doug. 43.
 
 Sect. 6.] or the certificate. 611 
 
 no dividend had been declmrd — and the plaintiff afterwards Effcd. 
 entered up judgment, and took out execution; — upon a 
 motion to set it aside, on the ground of the cognovit being 
 discharged by the subsequent bankruptcy and certificate, 
 the Court refused the motion, saying, that a cognovit is a 
 mere acknowledgment of the' amount of the damages — and 
 that where a man acknowledges the cause of action, the 
 plaintiff may sign judgment at any time. (1) 
 
 As to the form of pleading, and the evidence necessary 
 to defeat a certificate under a second commission, see post. 
 
 With respect to a certificate under a third commission, As to ccr- 
 it has been held, that though the bankrupt had not paid ^' j^^^ 
 155. in the pound under the second, the certificate was third com- 
 not void, but voidable only by application to the Lord '"'*5^°"- 
 Chancellor. (2) For a certificate is valid, as long as the 
 commission under which it is obtained continues in force — 
 unless, indeed, in those cases where the statute says that 
 the certificate shall be absolutely void. (3) 
 
 In that part of the above clause which relates to the Operation 
 compounding with creditors, such a composition only is o^^ '^^■"j.^^- 
 contemplated, as is general, and is calculated to admit all compound- 
 creditors of every description. Therefore, where a deed of '"^ ''"^^^ 
 
 . . , creditors. 
 
 composition was framed only for the joint creditors of two 
 
 bankrupts, and not signed or accepted by the separate cre- 
 ditors of one of the bankrupts, it was held not such a com- 
 pounding, as would prevent the certificate from extending 
 to the protection of the future property of the bankrupt, as 
 well as of his person. (4') But, if the terms of the deed 
 embrace all the creditors, although some of them do not 
 come in, and afterwards sue the bankrupt, and are paid, 
 — that has been held to be such a compounding, as will 
 deprive the bankrupt of the benefit of his certificate, with 
 regard to the protection of his future effects. (5) It is a 
 
 (1) Wyhorne v. Ross, 2 Taunt. (4) iVbr/ow v. (SAa^espca?-, 15 East, 
 68. 619. 
 
 (2) Todd V. Marfield, 3 B. & C. (5) Slaughter v. Cheyne, 1 M. & 
 222. S. 182. 
 
 (3) Ibid. 
 
 R R 2
 
 612 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Effect. 
 
 As to dis- 
 charge 
 under 
 insolvent 
 act. 
 Where 
 money 
 fraudu- 
 lently mis- 
 applied. 
 
 question, however, when a bankrupt (who has previously 
 compounded with his creditors) pays those creditors before 
 his bankruptcy the full amount of their debts, whether his 
 future estate and effects are to remain liable, unless his estate 
 under the commission shall produce 15s. in the pound. 
 The above provision in the statute makes no distinction, 
 whether the creditors, with whom the bankrupt has com- 
 pounded, are afterwards satisfied or not. And it may be 
 argued, that such a case is within the mischief contemplated 
 by the act ; for the bankrupt will have had all the benefit 
 (for a certain time at least) of a composition, till he could 
 satisfy his creditors the full amount of their debts; and, in 
 the interim, the creditors will have sustained some damage 
 by the delay. The crime, therefore, (if it may be so called) 
 of non-payment will be complete at one time, and the sub- 
 sequent payment in full may have been the very cause of 
 his bankruptcy. (1) On the other hand it may be con- 
 tended, that the term " compounding with his creditors*' is 
 intended by the statute to imply simply a composition as to 
 the amount of his debts — that is, accepting a part in satis- 
 faction of the whole ; and that when the debts are actually 
 paid m Jtdl, the agreement of the creditors to give the 
 bankrupt merely time for payment, cannot be said to come 
 within the meaning of the word comjwsition. 
 
 An uncertificated bankrupt is not entitled to his dis- 
 chai'ge under the insolvent act, unless he has been in 
 custody for the space of three years. (2) 
 
 Where after the bankruptcy of one partner, the other was 
 obliged to pay a partnership debt, which he had before the 
 bankruptcy furnished the bankrupt partner with money for 
 the express purpose of discharging — who, instead of doing 
 so, misapplied the money, — this was considered to be 
 such a case o^ frauds as prevented the certificate from 
 operating as a bar to an action by the solvent partner. 
 
 (l) See the argument of Mr. J. 
 Holroyd (then at the bar) in the 
 
 case of Read v. Sowerby, 5 M. & 
 S. 79. 
 
 (2) 7G. 4. c. 57.
 
 Sect. 6.] OF THE CERTIFICATE. 613 
 
 for the bankrupt's proportion of the debt paid subsequent Effect. 
 
 to the bankruptcy. (1) But, as such a debt 7nai/ he proved 
 
 now under the 52d section of the new act, it is a question, 
 
 whether he would not be discharged by his certificate; 
 
 for, notwithstanding the fraudulent misapplication of the 
 
 money by the bankrupt, it does not seem to. come within 
 
 those exceptions enumerated in the act, which render the 
 
 certificate void. 
 
 The certificate does not estop the bankrupt, from dis- Certificate 
 
 puting the validity of the commission against a stranger to '^"^^ "°' 
 
 it, between whom and the bankrupt there is, consequently, bankrupt 
 
 no reciprocity. Therefore, in an action of trover brought ^^"^ ^^^ 
 
 1 - • 1 1 1 1 puting 
 
 agamst a stranger to the commission by a bankrupt, who comniis- 
 
 had obtained his certificate under a joint commission issued sion 
 
 against himself and others, he was held to be not pre- srranger. 
 
 vented from taking advantage of its illegality. (2) 
 
 It has been before stated (3), that where the bankrupt is Operation 
 
 assignee of another bankrupt's estate, and is indebted to of certifi- 
 
 . . cate where 
 
 that estate in respect of money retained or employed by bankrupt 
 
 him to the amount of 100/., the certificate will only have assignee of 
 the effect of freeing his 2)erso7i from arrest ; but his future bankrupt 
 effects will remain liable for so much of his debt to the estate, 
 estate of which he is assignee, as shall not be paid by divi- 
 dends under his commission, together with interest for the 
 whole debt. (4') 
 
 The certificate, also, (as has been already mentioned (5) ) Of no ef- 
 will have no effect, unless it is entered of record at the Bank- ^^^;'^"|fj* 
 rupt office, and has a memorandum of such entry indorsed 
 on it by the proper officer, pursuant to the directions of the 
 95th and 96tk sections of the new act. 
 
 (1) Wright V. Hunter, lEast,20 (4) (Sec^ion^ 104, 105. 
 
 (2) Butts V. Bilfce, 4 Pri. 240. (5) Ante, 576. 
 (5) Ante, 341. 
 
 n R 3 
 
 registered.
 
 614- OF THE CERTIFICATE. [Ch. 14. 
 
 Section VII. 
 
 Of Pleading the Certificate^ and herein of the Evidence to 
 support it, or defeat it. 
 
 When By section 126. (1), any bankrupt who shall, after his 
 
 ^" " , certificate is allowed, be arrested, or have any action 
 ruptcy and _ ' ' •' 
 
 certificate brought against him for any debt, claim, or demand, made 
 "l**^ 11 proveable by the statute xinder the commission (2), may be dis- 
 charged upon common bail ; and may plead in general, that 
 the cause of action accrued before he became bankrupt, 
 and give the act and the special matter in evidence; and 
 such certificate and the allowance thereof will be sufficient 
 evidence of the trading, bankruptcy, commission, and other 
 proceedings precedent to the obtaining such certificate, 
 provided the certificate is registered pursuant to the di- 
 rections contained in the 95th and 96th sections. (3) 
 The form As the statute provides for \\\q. particidar form of the 
 the statute P^ea, viz. that the cause of action accrued before the de- 
 iiuist be fendant became bankrupt, — he cannot, therefore, give his 
 bankruptcy in evidence under \\\q general issue. (4) Neither 
 can he plead specially in an action of covenant, " that 
 before the action he became bankrupt, and that the said 
 indenture was made before he became bankrupt;" for he 
 must comply strictly with the form of the plea prescribed 
 by the statute. (5) But it is not necessary to aver, that 
 the bankruptcy happened before the commencement of the 
 suit. (6) And though the certificate is allowed after the 
 
 (1) Taken from 5 G. 2. c. 50. was to recover full costs, seems to 
 s. 7. 15. be unintentionally omitted. Eden, 
 
 (2) The words in italics are in- 399. note (a). 
 
 troduced instead of the words, (4) Gowlandv.Wa7-ren, 1 Camp. 
 
 " any debt due before such time 56'5. 
 
 as he became bankrupt," which (5) Charlton v. King, 4 T. R. 
 
 were in the 5 G. 2. c.'SO. s. 7. 156. 
 
 (3) The provisions contained in (6) Tower v. Cameron, 6 East, 
 the 5 G. 2. c. 30. s. 7. that if a ver- 415. 
 
 diet passed for the defendant, he
 
 Sect. 7.] OF THE CERTIFICATE. 615 
 
 commencement of the action, yet if it is before the })lea is Ofjjhad- 
 pleaded, it will be evidence to support the general plea ' "'^ '^' 
 given by the statute. ( 1 ) 
 
 It is said to have been ruled by Lord Kenyon, that May be 
 a certificate granted after plea pleaded, though before ^^^^^ ^^^. 
 trial, was not available at law. (2) But it seems to be rein con- 
 settled, that it may be pleaded puis darrein continuance at 
 any time before judgment; and an affidavit verifying the 
 plea to the best of the deponenfs knowledge and belief has 
 been held a sufficient affidavit to accompany the plea under 
 the 4 Ann. c. \6. s. 11. (3) Thus, where an uncertificated 
 bankrupt had pleaded a judgment recovered — and upon an 
 issue of md tiel record^ the plaintiff ruled him to produce 
 the record on the 25th April — and the bankrupt (who had 
 obtained his certificate on the 14th of April) on the 
 morning of the 25th moved for leave to plead the allow- 
 ance of the certificate p^^^5 darrein contimiance^ — the Court 
 in this case allowed the plea. (4) And though the certi- 
 ficate be not obtained till after judgment, when it is too 
 late to plead it, it is still available for the bankrupt's dis- 
 charge out of execution for the debt and costs. (5) 
 
 The plea of bankruptcy does not require the signature As to 
 
 of counsel in the King's Bench (6); but in the Common counsel's 
 -r«i • J • • • ,w\ mi . signature. 
 
 Fleas a serjeant s signature is necessary to it. (7) 1 he plea 
 
 must be delivered, and not filed. (8) 
 
 It was once held, that the defendant must aver in his As to aver- 
 
 plea, " that he has conformed according to the statutes '"^"j^ ^^. 
 
 confornii- 
 
 (1) Harris v. James, 9 East, 82. (3) Skarpev. Witham, 1 M'Clell. 
 Qu0ere,Whether the wording of the & Y. 350. 
 
 new act, section 126. (in which the (4) Tbid. 
 
 words, "after his certificate shall (5) Per Lord ]pilenborough /far- 
 have been allowed," are used — ris v. James, 9 East, 92.; and see 
 instead of the general word " after- Section 126. 
 
 wards," in the 5 G. 5. c. 30. s. 7. (6) Leigh v. Monteiro, 6 T. R. 
 
 13.) will not make a difference in 496. 
 
 this respect. (7) Pitcher v. Martin, 3 Bos. & 
 
 (2) Longmead v. Beard, cit. P. 171. 
 
 9 East, 85. (8) Henderson v. Samson, 2B. 
 
 &A.592. 
 
 R R 4 
 
 ty.
 
 616 OF THE CERTIFICATE. [Ch. J 4. 
 
 Ofj)lead' concerning bankrupt;" (1) but this case was afterwards 
 mgtt. {jg,^ie(^i to be law ; for, if the defendant has 7tot conformed, 
 it is matter of evidence (2), and the statute having directed 
 a general form of pleading the bankruptcy, it seems suffi- 
 cient to follow the words of the statute. 
 Pleading As to pleading the certificate in equity, it has been held, 
 m equity, ^.j^^j. -f ^^^^ demand of a plaintiff in equity against a bankrupt 
 is in the nature of an action at law for a tori, the bill may 
 be demurred to ; but if it is in the nature of an action of 
 assumpsit^ the defendant may plead his bankruptcy and 
 certificate. (3) 
 As to If a bankrupt is sued by his surety, or other person, who 
 
 plemimg ^^.^g liable for his debts at the time the commission issued 
 
 certificate 
 
 when sued against him, (though the surety may have become such after 
 
 by surety, y^^ ^^^^ ^f bankruptcy, and pays the debt after the issuing 
 of the commission), the bankrupt must plead his bankruptcy 
 and certificate, if he means to avail himself of it. (4) In 
 such a case it has lately been decided (with reference to 
 the Sth section of the 49 G. 3. c. 121.), that the general 
 plea of bankruptcy was sufficient without pleading the bank- 
 ruptcy (5) specially — the obvious meaning of that section 
 being, in the words of Lord C. J. Abbott, that the bankrupt 
 should have the same benefit of a precise form of pleading, 
 as if the debt had arisen before the bankruptcy ; and that a 
 payment made by the surety after the bankruptcy placed 
 the party in the same situation, as if the payment had been 
 made before the bankruptcy by any other person. (6) This 
 decision, however, was founded on the peculiar wording of 
 the latter part of the Sth section of the 49 G. 3. (which is 
 omitted in the parallel section, the 52d, of the new statute) 
 — as well as upon the circumstance of no decision having 
 been cited, to show that the general form would not do. 
 But a case might have been cited, in which it was held by 
 
 (1) Parisv. (Sd^f-M, 2Wils. 139. (4) Stcdman v. Martismont, 
 
 (2) Willanv.Geordini, I CQ.h. 12 East, 664. 13 East, 427. 
 
 518. (-S) Westcott \. Hodges, 5 B. & 
 
 (3) De Tastet v. Walker, Buck, A. 12. 
 
 153. (6) Ibid. 17.
 
 Sect. 7.] OF THE CERTiriCATE. 61? 
 
 Lord Mansfield, that when a promissory note was made Of plead- 
 before, but was not payable until c/f'hr the bankruptcy, a ' "^ '^' 
 plea that the debt was due at the time of" the bankruptcy 
 was bad in point of form. ( 1 ) It may therefore still be 
 advisable, in sucli a case, to plead the bankruptcy more 
 specially, than in the general form given by the statute. (2) 
 
 The general plea, as given by the statute, puts the whole General 
 merits of the question in evidence on both sides ; and, [hg^'^ho^g 
 therefore, in an action on a bond to which bankruptcy is merits in 
 pleaded, the plaintiff will be allowed to give the coiisider- *^*"'^' 
 ation of the bond in evidence, to show that he is not barred 
 by the certificate. (3) So, the plaintiff will be at liberty to 
 give evidence of gaming by the bankrupt, in order to 
 vitiate the certificate ; but he must confine his evidence to 
 one day, if he relies upon the bankrupt having lost 20/.; 
 and he must also elect, whether he will give evidence of one 
 loss amounting to 20/. in one day, or of several losses in 
 the year amounting to 200/. (4<) And, generally, all facts, 
 which the plaintiff relies on as vacating the certificate, may 
 be given in evidence on the similitei' to the defendant's 
 plea (5) ; for (the plea of bankruptcy and certificate coti- 
 duding to the countrij) a replication of any new fact (which 
 according to the rules of pleading must conclude with a 
 verification) would be bad on special demurrer. (6) 
 
 Whei'e the defendant, upon a plea of bankruptcy, put When 
 
 in a certificate under a commission issued against him by a '^.o'^rois- 
 
 ^ •' sion issued 
 
 different name from that which he was commonly known by, against 
 
 — upon its being objected that the certificate was a nullity, f'''*"'^'!"?' 
 Lord Ellenborough ruled, that the objection might be a ent name, 
 good ground for applying to the Lord Chancellor to super- 
 sede the commission — but that if it really did issue against 
 the defendant, while it remained in force, he must give 
 
 (1) Trueman v. Fenton, Cowp. (4) Hughes v. Morlei/, 1 Holt> 
 544. 520. 
 
 (2) See Wood v. Dodgson, 2 M. (5) S, C 1 B. & A. 22. 
 
 & S. 196. (6) Wi/so?i V. Kcmj), 2 M. & S. 
 
 (5) Alsop V. Price, Doug. 155.; 549.; and see Miici v. Williuitis, 
 
 and see ex parte Kcnnct, 1 Ves. & 1 P. Wins. 258. 
 B. 193. 1 Rose, 351.
 
 618 
 
 OF THE CERTIFICATE. 
 
 [Ch. U. 
 
 Of plead- 
 ing it. 
 
 Foreign 
 certificate 
 should be 
 specially 
 pleaded. 
 
 What cer- 
 tificate af- 
 fords pre- 
 sumptive 
 proof of. 
 
 Plaintiff 
 can only 
 impeach 
 the certi- 
 ficate. 
 
 As to costs, 
 when 
 bankrupt 
 sued by 
 executor. 
 
 Where 
 
 certificate 
 
 pleaded 
 
 effect to the certificate; but he required evidence, that the 
 defendant was once called by the name mentioned in the 
 commission. (1) 
 
 A certificate obtained in a foreign country should be 
 specially pleaded, setting forth all the proceedings under 
 the bankruptcy ; for where, under a bankruptcy in Ireland, 
 there was a general plea of the bankruptcy and certifi- 
 cate, referring to the Iri&h statute, and concluding to the 
 country in the same manner as the plea allowed with 
 respect to English bankrupts, it was held bad. (2) 
 
 On the trial of a plea of bankruptcy, the time of the issuing 
 of the commission is presumptively proved to be on the day 
 of the date of the commission, as it appears in the certifi- 
 cate — and the time of the act of bankruptcy, upon which the 
 commission issued, is also presumptively proved by the 
 statement of it in the proceedings under the commission. (3) 
 It was held by Lord Kenyon, that the plaintiff was pre- 
 cluded from going into any evidence to impeach the com- 
 missio7t, and that it must be confined to the certificate only; 
 but that, if the petitioning creditor signed the certificate, 
 evidence might then be admitted of his debt being of such 
 a description, as would render the certificate null and void, 
 though it might have the effect of impeaching the com- 
 mission itself. (4) 
 
 In an action brought against a bankrupt by an executor, 
 though the defendant obtains a verdict upon a plea of 
 bankruptcy and certificate, the plaintiff is in this case 
 no more liable to costs, than when suing as executor 
 in any other action; for the general statutes giving costs 
 to defendants are held not to extend to executors and 
 administrators. (5) 
 
 When a bankrupt pleads his certificate under a second 
 commission, — the production of thcj/fr^^ commission and the 
 
 (1) Stevens v. Elizee, 3 Camp. 
 256. 
 
 (2) Quin V. Keefe, 2 H. B. 553. 
 For a form of a plea of a foreign 
 certificate, see Potter v. Brown, 
 5 East, 1 ■24. 
 
 (5) Pearson v. Fletcher, 5 Esp. 
 90. 
 
 (4) Bateson v. Hartsink, 4 Esp. 
 43. 
 
 (5) Martin v. Norfolk, i H. B. 
 528.
 
 Sect. 7.] OF THE CERTIFICATE. 619 
 
 proceedings under it, with proof that the bankrupt sub- Of plead- 
 
 mitted to it, is sufficient evidence against liim, of his ^ "^ '^' 
 
 having been a bankrupt under the first commission. (1) under a 
 
 And the omis then lies on the bankrupt to prove, that his second 
 
 1 77-1 -1 111 1 coramis- 
 
 estate has actually paul 1 55. ni the pound under the second sjon, what 
 
 commission (2); for mere proof of the probability of this is bankrupt 
 
 not sufficient. (3) When indeed, under the former law, a prove. 
 
 judgment creditor had recourse to a scire facias against a 
 
 certificated bankrupt under a second commission, in order to 
 
 obtain execution against his effects, the plaintiff was obliged 
 
 to aver, that the bankrupt's estate had not paid 15^. in the 
 
 pound — because, in a scire facias, the plaintiff must state 
 
 every thing that entitles him to recover (4) — though it seems 
 
 that the plaintiff was not bound to prove that negative. (5) 
 
 Where, on the defendant's pleading his bankruptcy, issue What 
 
 is joined on the flict, whether he has been discharijed or P'^'"'^J" 
 
 I r • • ii'-m bound to 
 
 not under a. former commission, — the plaintiff must show, prove to 
 
 that the defendant obtained his certificate under that com- ^^^^^^ ^t. 
 mission, either by the regular proof of it, or by secondary ^ ^f *^" 
 evidence after notice to produce it. The defendant's affi- evidence 
 davit of conformity under the first commission would be i9r™er 
 good secondary evidence, if (after notice) he failed to pro- 
 duce the certificate; but it would be insufficient without such 
 notice. (6) If, however, after notice to produce the former 
 certificate, the defendant does not produce it, — it is sufficient 
 evidence of the allowance of it by the Lord Chancellor, if 
 witnesses state, that they were employed by the bankrupt 
 to solicit the certificate — and that, looking at their books, 
 they have no doubt it was allowed (7) by the Lord Chan- 
 cellor. But the book kept in the office of the secretary of 
 
 (1) HavUand v. Cook, 5 T. R. (4) Gill v. Scrivejts, 7 T.R. 27. 
 655, (5) Per Lord Alvanley, 3 Bos. 
 
 (2) Jelfs V. Ballard, 1 Bos. & P. & P. 1 87. 
 467. Edmonson v. Packer, 3 Bos. (6) Graham v. Grill, 4 Camp. 
 & P. 187. Gregory v. Merton, 282. 
 sEsp. 195. (7) Henry v. Leigh, 3 Camp. 
 
 (3) Coverly v. Morley, 16 East, 499. 
 '225. 
 
 certificate.
 
 620 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 Of plead- 
 ing it. 
 
 Where 
 bankrupt 
 neglects 
 to plead 
 his cer- 
 tificate ; 
 
 or to pro- 
 duce it 
 upon the 
 trial. 
 
 Conse- 
 quences as 
 to bail. 
 
 bankrupts, in which entries are made of the allowance of 
 the certificate, is not secondary evidence of the allowance, 
 in the absence of the clerk who made the entry. ( 1 ) 
 
 Where judgment was obtained against a defendant, who 
 had omitted to plead his bankruptcy through the neglect 
 of his attorney — and it was a fair case on the part of the 
 defendant, — the Court of Common Pleas set aside the judg- 
 ment, in order to let in the plea of bankruptcy, observing, 
 that it would be cruel to charge the bankrupt from such 
 neglect. (2) But where a bankrupt, after pleading his 
 bankruptcy, neglected to produce his certificate upon the 
 trial, and a verdict was obtained against him, — the Court 
 of Chancery would not assist him by granting him an in- 
 junction. (3) 
 
 In a case, where the defendant's bail became fixed, in 
 consequence of his omitting to plead his bankruptcy, the 
 Court of Common Pleas refused to set aside the proceed- 
 ings against them, saying, that it was the duty of the bail 
 to watch the proceedings against their principal ; and that 
 they were in all cases bound, or benefited, by the defence 
 which he makes (4) to the action. But this case has 
 never been acted upon in the Court of King's Bench, 
 where the general rule is, that wherever the bankrupt is 
 entitled to his discharge, the Court will relieve the bail, on 
 motion for entering an exoneretur on the bail-piece. (5) 
 Where the proceedings in an action on the bail-bond were 
 stayed, and the defendant in the original action afterwards 
 pleaded the general issue, and subsequently a plea of bank- 
 ruptcy 'puis darrein contimiance — there being no affidavit 
 that the application to stay the proceedings was made on 
 the part of the bail, — the Court of King's Bench set aside 
 the latter plea, and restrained the defendant to his plea of 
 
 (1) Henry v. Leigh, 5 Camp. (4) Clarke v. Hoppe, 3 Taunt. 
 499. 46. 
 
 (2) Evans v. Gill, 1 Bos. &P. 52. (5) Todd v. Maxjield, 5 B. & C. 
 (5) Lingardv. Hibbcrtson, 1 Rose, 222. 
 
 460.
 
 Sect. 8.] OF THE CERTIFICATE. 621 
 
 the general issue — on the ground, that when the proceed- Of plead- 
 ings were stayed in the action on the bail-bond, it was in- '" ^ '^' 
 tended, that the defendant should only question the validity 
 of the original debt. (1) The plea of bankruptcy also is 
 given only to the bankrupt himself: bail, therefore, cannot 
 plead the bankruptcy and certificate of their principal in an 
 action brought against them ; but must either apply to the 
 Court for summary relief by motion, or proceed by audita 
 querela. (2) 
 
 On the production of the certificate in evidence, the in- Registry of 
 dorsement thereon, purporting to be signed by the proper ^^""t^'ncate, 
 officer at the bankrupt office, will (without any proof of proved, 
 such signature (3) ) be admissible evidence of the certifi- 
 cate having been duly entered of record, pursuant to the 
 requisitions of the 95th and 9Qth sections of the new 
 statute. 
 
 I'he allo'wance of the certificate needs no proof; for the Allow- 
 Judges take judicial notice of the hand- writing of the Lord ^^'^^' 
 Chancellor. * 
 
 Section YIII. 
 Of Discharging a certificated Bankrupt. 
 
 By section 126. of the new statute (as we have already Bankrupt 
 seen) it is provided, that wiiere the bankrupt after the JJ^^^.'^^ 
 allowance of his certificate is arrested for any debt, claim, on com- 
 or demand, proveable under the commission, he may be i"0"bail. 
 discharged upon common bail. And if he is taken in exe- 
 cution, or detained in prison for such debt, where judg- 
 ment has been obtained before the allowance of his certifi- 
 cate, any Judge of the court wherein the judgment has 
 been obtained may, on the bankrupt producing his certi- 
 
 (1) Dowson V. Levi, 4 B. & A. 450. Donnelly v. Dunn, 1 Bos. & 
 249. P. 45. 
 
 (2) Walker y. Giblett, 2B1. 812. (5) Section 96.; and see post. 
 Beddome v. Holbrooke, 1 Bos. & P. Chap. XVIII. title " Evidence."
 
 622 
 
 OF THE CERTIFICATE. 
 
 [CI). 14, 
 
 Of dis- 
 charging 
 the bank- 
 rupt. 
 
 Officer 
 
 cannot 
 
 discharge 
 
 without a 
 
 Judge's 
 
 order. 
 
 When 
 order for 
 discharge 
 will be 
 refused. 
 
 A feigned 
 issue some- 
 times 
 directed. 
 
 As to re- 
 lief on an 
 
 audita 
 querela. 
 
 ficate, order the officer to discharge him without exacting 
 any fee. 
 
 The officer, however, who arrests the bankrupt, has no 
 power to discharge him without the order of a Judge ; and 
 therefore, where a bankrupt taken in execution produced 
 his certificate to the officer and demanded his discharge, 
 with which the officer complied, the Court refused to 
 stay proceedings in an action against the sheriff for an 
 escape. ( I ) 
 
 The Court will not discharge the bankrupt upon com- 
 mon bail, if it appears that the certificate was obtained by 
 fraud (2) — or that the bankrupt has been guilty of any de- 
 ception (3) — or if the certificate is seriously meant to be 
 disputed, (i) But in a case where an attorney, who had 
 obtained his certificate under a commission, describing him 
 as " a dealer and chapman," was arrested for a debt pay- 
 able before the commission issued — though the plaintiff 
 swore that he did not know that the defendant was the 
 person mentioned in the commission, and that he intended 
 to dispute the validity of it on the ground of fraud, — the 
 Court of Common Pleas nevertheless ordered the bank- 
 rupt to be discharged on common bail, as the plaintiff had 
 not stated the nature of the fraud, nor iiohen he discovered 
 its existence. (5) The Courts, however, will sometimes, 
 when they think it necessary, instead of discharging the 
 bankrupt in a summary way, direct the commission to be 
 tried on a feigned issue (6) ; and the same thing also has 
 been done against the bail, where the validity of the certi- 
 cate has been contested. (7) 
 
 In cases where execution had been taken out against 
 the goods of a bankrupt, and executed after the allowance 
 
 (1) Sherwoodv.BensoUyAli&uvit. {5) Kemp v. Neville, 5 Moore, 
 631. 21. 
 
 (2) Vincent y. Brady, '2\i.'R.\. (6) Yeo v. Allen, Tidd. Prac. 
 
 (3) Sowley v. Jones, 2 Bl. 725. 215, 
 
 (4) Stacey v. Frederici, 2 Bos. (7) WooUer \. Leicester, GTaunt. 
 & P. 390. Nowers v. Colman, 75. 
 
 Buck, 5.
 
 Sect. 8.] OF THE CERTIFICATE. G23 
 
 of the certificate, it was formerly held, that a Judge had Ofdis- 
 
 no authority to discharge the execution upon motion, and ^'^"''P'^g 
 I 1 1 1 I • 1- r ,■ ^ the bank- 
 
 that the bankrupt, to obtam relier, must resort to an audita rupt. 
 
 querela, {i) But the modern practice appears to be, for ' 
 
 the Courts to interpose in a summary way in all cases, 
 
 where the party would be entitled to relief on an audita 
 
 querela. (2) 
 
 A cei'tificated bankrupt is, also, entitled to be discharged As to 
 
 from custody, though his imprisonment is in the nature ™P™on- 
 
 •^ , " , ^ raent for a 
 
 of a contempt, in not obeying the order of the Lord Chan- contempt 
 
 cellor made in a previous matter of bankruptcy — that is, if 
 
 such order is for the payment of money by him, which could 
 
 be proved under his commission. (3) 
 
 It has been suggested, that bankruptcy and certificate is on ?kcapias 
 no ground of discharge of a prisoner in custody on a capias " ^''' ""'* 
 utlagatum {^) ; though it is somewhat difficult to extract 
 such a position from the very confused report of the case, 
 which is cited as an authority for it. 
 
 As to the discharge of a bankrupt, when he is arrested 
 upon a new promise to pay a debt barred by the certifi- 
 cate, see the following section. 
 
 Where a joint action is brought against a bankrupt Where 
 (who has obtained his certificate) along with other defend- jointw ^ 
 ants, the bankrupt's name will be struck out of the pro- sued with 
 ceedings, unless he is indemnified by the plaintiff. (5) ° ^'^°' 
 
 (1) Caleraft v. Swan, Barnes, (3) Ex parte Eicke, 1 G. «& J. 
 204. Ashdow7i\. Fisher, \h\d. 206. 261. 
 
 Callenv. Mcyrick, iT.R. 36 i. {4) Beauchamp v. Tomkins, 
 
 (2) Lister v. Mundell, 1 Bos. & 3 Taunt. 141. 
 
 P. 427. 3 Bl. Com. 406.; and see (5) Ex parte Read, 1 Rose, 4G0. 
 Anon. 1 Salk. 95. and Wicket \. iV.&B. 346. 
 £remer, I Ld. R. 439. 1 Salk. 264.
 
 G24. 
 
 OF THE CERTIFICATE. 
 
 [Ch. U. 
 
 The pro- 
 mise must 
 now be in 
 writing, 
 and signed 
 by the 
 bankrupt. 
 
 A plaintiff 
 need only 
 declare on 
 the ori- 
 ginal con- 
 sideration. 
 
 Security 
 given by 
 bankrupt 
 after his 
 bankrupt- 
 cy for part 
 of a debt 
 not provedy 
 valid. 
 
 Section IX» 
 Of the Bankrupfs Liability on a new Promise. 
 
 Though a bankrupt is discharged by his certificate from 
 all debts due at the time of the commission, he may still 
 make himself liable on a new jiromisc to pay any one of 
 those debts ; for, though all legal remedy of the creditor is 
 taken away by the statute, the debt itself is clearly not ex- 
 tinguished in conscience ,- and every honest man, as Lord 
 Mansfield observed, would discharge all debts owing by 
 him at his bankruptcy, if he afterwards had it in his 
 power to do so. (1) But it is now provided by the new 
 statute (section 131.) that such promise must be in writing, 
 in order to bind the bankrupt ; and it must also be either 
 signed by himself, or by some person lawfully authorised in 
 writing by him. 
 
 The existence of the debt i7i foro conscienti(£ is a suffi- 
 cient consideration for the bankrupt's promise to pay it ; 
 and indebitatus assumpsit will lie against him on the original 
 consideration, to which the certificate will be no bar (2) ; 
 neither need the plaintiff declare specially on such new 
 promise ; but it will be sufficient for him to declare gene- 
 rally, and give the subsequent promise in evidence. (3) 
 
 The bankrupt, also, may after his bankruptcy give a cre- 
 ditor (who does not come in under the commission) a valid 
 security for the whole, or for part of his debt, which will not 
 be barred by his certificate. As where a bankrupt, who was 
 indebted to the plaintiff" upon two notes for Q^l. 9s. each 
 (which were not proved under the commission), voluntarily 
 proposed to secure to him the payment of 671. in satisfaction 
 of his debt, if he would take up the two notes, and cancel and 
 
 (1) Per Ld. M. 2 Cowp. 548. 
 Per Ld. Hard. 1 Atk. 256. 
 
 (2) Perm v. Bennett, 4 Camp. 
 
 205. Williams v. Di/de, Peake, 68. 
 Dillo7i V. Bailey, cit. Cowp. 549. 
 (.■>) Ibid.
 
 Sect. 9.J OF THE CERTIFICATE. 625 
 
 deliver them to the bankrupt — and the plaintiff accordingly Uabiliiy 
 
 on 
 
 pj 
 
 did so, and took in exchange from the bankrupt a fresh promise 
 
 note for 67/. ? — it was held, under these circumstances, 
 that a plea of bankruptcy and certificate would not bar the 
 plaintiff's demand on the last-mentioned note — and that, 
 as there was no scheme on the part of the plaintiff' to de- 
 ceive or impose upon the bankrupt, the plaintiff might 
 recover. ( 1 ) So, if a bankrupt after being discharged by So for a 
 his certificate applies to one of his creditors (who had ^^ if after 
 proved under the commission) to lend him a sum of money certificate. 
 to carry on his trade, or to become his security for any 
 office — and as a consideration executes a bond for the old 
 debt, — such bond is valid. (2) So, also, if a bankrupt pay As to pay- 
 interest upon a bond proveable under the commission, j^jg^ggj ^j, 
 after having obtained his certificate, — it will be an admis- a bond 
 sion by him that the principal was then due, and he will *"^*^ ^^ 
 be liable as on a new contract. (3) 
 
 A promise, also, (made after bankruptcy to pay an old Promise 
 debt) is equally binding on the bankrupt, though it is made ^^Qy^^ 
 before he obtains his certificate ; and such promise is not made 
 destroyed by the certificate being obtained afterwards. (4) -^^-t. 
 So, where a bankrupt after his bankruptcy, and before 
 certificate, indorsed to the plaintiff two promissory notes, 
 to secure a debt due before the bankruptcy, the certificate 
 subsequently obtained was held no bar to an action on the 
 notes. (5) Where, also, a defendant was in execution at the 
 suit of the plaintiff, and a commission of bankrupt issued 
 against him — soon after which, in order to regain his 
 liberty, he g^ve the plaintiff a bond and warrant of attorney 
 to confess judgment for the old debt -^ and the defendant 
 afterwards obtained his certificate under the commission, — 
 the certificate was held to be no bar to the plaintiff's re- 
 covering; for the bogd* and. warrant of attorney being 
 
 (1) Trueman\. Fe7iton, 2 Cowp, (i) Roberts v. Morgan, 2 Esp. 
 544. ' V "* 736. ' ' , ' 
 
 (2) Ex parte Burton, 1 Atk.25d: (5) Brk:\. Braham, lBing.281, 
 ^{^5) Alsopy. Broivn,liouq,.\\)2. 
 
 • * » ^ ^ f
 
 626 
 
 OF THE CEU'IHKICATE. 
 
 [Ch. 14-. 
 
 LiabUUif 
 on (I new 
 promise. 
 
 As to a 
 conditional, 
 or ail ab- 
 solute, pro- 
 mise. 
 
 General 
 declar- 
 ations not 
 sufficient. 
 
 As to lia- 
 bility to 
 arrest on 
 siibsc(|uent 
 promise. 
 
 irivcn to procure the defendant's liberty, the old debt became 
 thereby extinguished, arid it was considered to be a new 
 debt(l) arising upon a new consideration. But any trans- 
 action of this nature will of course be invalid, if the object 
 is to obtain a creditor's signature to the certificate (2), or 
 to dissuade him from opposing the allowance of it by the 
 Lord Chancellor. 
 
 In a case where a bankrupt, after obtaining his certifi- 
 cate, said, " the jplaintrjf shotild he no loscr^ but that he 
 ivould imy when he xms able," — two of the Judges held, 
 that this was a conditional promise, and th.at the plaintiif 
 ought to have shown that the defendant xvas able to pay : 
 but Lord Loughborough thought it amounted to an abso- 
 lute promise. (3) Genaril declarations, however, b}' the 
 bankrupt, " that he 'would jmy every body, and that his 
 effects "diould jmy 205. in the imund (4')," are not sufficiently 
 precise and positive to bind the bankrupt by a new pro- 
 mise, which should be in itself express, distinct (3), and 
 unequivocal. And a subsequent promise to pay a pi'omis- 
 sory note, which had been given to a creditor by way of 
 fraudulent preference, is a promise without consideration, 
 and will not therefore support an (6) action. 
 
 Where a certificated bankrupt was arrested for an old 
 debt contended to have been revived by a new promise, 
 namely, to *' pay when he was able," — the Court of King's 
 Bench discharged him upon common bail ; Lord Mans- 
 field observing, that to keep a man in prison upon a con- 
 scientious obligation, would be taking advantage of liis con- 
 scientiousness to use it against all conscience. (7) And in 
 a recent case, the Court has acted upon the same princi- 
 ple, where the bankrupt was alleged to have made even an 
 
 (1) Birch V. Sharland, 1 T. R. {5) Fleming v. Hayne, 1 Star. 
 715. .170. . 
 
 (2) Sec ante, 567. 569. 570. (6) Coetcsholt v. Bennett, 2 T. R. 
 (.3) Bcsford\. Saunders, 2 H. B. 16Z. 
 
 116. ( 7 ) Baitcij V . Dillon, 2 Burr. 756 . 
 
 (4) Lj/nbiij/v Wcigldtnan, 5Eii). ■Fortlv.(Mllun,'2ii[.79'J. 
 198. 
 
 1
 
 Sect. 9.] OF THE CERTIFICATE. 627 
 
 absolute promise to pav the debt, the Chief Justice saying, LiabUity 
 
 on a new 
 promise. 
 
 ., , . . f. , . , , , ore a new 
 
 " tliat It was a question for the jtiry, whether, or no, the 
 
 " bankrupt has made himself hable by a new promise ; and, 
 " until they have decided that question against him, he is en- 
 " titled to be discharged." (1) The like principle, also, has 
 been adopted by the Court, where an insolvent debtor has 
 made an absolute promise to pay a debt contracted prior to 
 his discharge under the insolvent act. (2) The Court of 
 Exchequer however have determined, that, when the pro- 
 mise of the bankrupt to pay is absolute, the bankrupt may 
 be arrested (3) — on the principle, as it seems, that where 
 the debt is comjjletcly revived by a subsequent promise to 
 pay it, all its legal incidents are also revived ; one of which 
 is, the right of the creditor to hold his debtor to bail. 
 This judgment is professed to be founded on the authority 
 of two old cases in the King's Bench, in one (4) of which the 
 point appears to be so decided : — but in the other, (5) 
 the Court merely refused to set aside an execution against 
 the goods of a defendant, who, having been discharged 
 under the insolvent act, gave a note for a part of the debt not 
 paid under the assignment. Moreover, the reasons assigned 
 by the Court of Exchequer for its judgment, it must be 
 confessed, do not appear to be very tenable ; — for the debt 
 cannot be said to be " completely revived" until a jury 
 have found it to be so ; and the mere cdlegation of the 
 plaintijf in his affidavit to hold to bail can never be con- 
 tended to amount to any evidence of such absolute revival. 
 
 Where a bankrupt promised a creditor to pay him a sum What act 
 certain, in consideration that he would not come under the %}' '^ *^-[f" 
 
 (1) Peers \. Gadderer, 1 B. &C. 595. Turner v. Schomberg, sStr. 
 116. The words of the \26th sec- 1233. sed vide contra, Horton v. 
 Hon are also extremely strong, viz. Moggridge, 6 Taunt. 563. 
 
 " any bankrupt, who, after his cer- (5) Blackbourn v. Ogle, s Pri. 
 
 tificatc shall have been allowed, 526. 
 
 shall be arrested for any debt made (4) Drew v, Jeffcries, Hil. T. 
 
 proveablc under the commission, 17S6. 8 Pri. 531. 1 Tidd. Prac. 
 
 shall be discharged upon common 251. 
 
 bail." (5) Best v. Barlcer, Mich. T. 
 
 (2) Wilson V. Kemp, 3 M. & S. 1782. 8 Pri. 533. 
 
 S S 2
 
 628 
 
 Liability 
 on a new 
 promise. 
 
 be a wai- 
 ver of the 
 agree- 
 ment. 
 
 OF THE CERTIFICATE. 
 
 [Ch. 14. 
 
 commission — and the creditor afterwards petitioned the 
 Lord Chancellor against the allowance of the bankrupt's 
 certificate — this was held to be a waiver of the agree- 
 ment — and that the creditor was thereby deprived of all 
 claim to any benefit which he might have otherwise derived 
 under it ; for, by opposing the bankrupt's certificate, the 
 creditor had been guilty of mala Jides, in defeating the 
 object of the agreement by an act which was totally incon- 
 sistent with it. (1) 
 
 (1) C0II4 V. LoveUy I Esp. 282. 
 
 I
 
 629 
 
 CHAP. XV. 
 
 OF PARTNERS. 
 
 Sect. 1 . Of the Effect of Bankruptcy generally^ as to the 
 Relation between Partners; and herein more 
 particularly of the Effect of a separate Com- 
 mission against one^ or more, of the Partners. 
 
 2. What is joint, and what separate, Property 
 
 under a joint or separate Commission. 
 
 3. What is a joint, and what a separate, Debt. 
 
 4. Of Proof by joint Creditors against the joint 
 
 and separate Estates. 
 
 5. Of Proof by separate Creditors under a Joint 
 
 Commission. 
 
 6. Of Proof by Creditors holding Joint and several 
 
 Securities ,- and herein of the Creditor'' s Elec- 
 tion against the joint, or separate. Estates. 
 
 7. Of Proof between Partners, and different Firms 
 
 composing one general Parttiership. 
 
 As to the effect of a sea'et Partnership, see ante, 
 " Reputed Ownership," 418. 
 
 And as to the right of one Partner to his Allowance under 
 a Joint Commission, see ante, Chapter XIII. " Of the 
 Bankrupt's Allowance." 
 
 Having in a former Chapter (1) considered the mode 
 and effect of suing out both a Joint Commission against 
 partners, and a separate Commission against one or more 
 
 (I) Ante, Ch. V. s. 4, 
 s s 3
 
 630 
 
 OF PARTNERS. 
 
 [Ch. Ij 
 
 members of a partnership, it is proposed in tliis Chapter 
 to inquire in what manner a joint, or separate, commission 
 affects the joint and separate ipropcrty of the partners ; — and, 
 afterwards, to consider the right of proof by the joint and 
 separate creditors of the partnership, as well as that between 
 the separate estates of the partners themselves ; this being 
 a branch of the subject, which it was thought too complex 
 in the present treatise to include under the general title of 
 proof of debts. The division of the subject matter intended 
 to be discussed may, it is conceived, be conveniently ar- 
 ranged under the foregoing heads. . 
 
 Section I. 
 
 Of the Effect of Banlcruptcy generally, as to the Relation 
 between Partners; and herein more pnrticidarhj of the 
 Effect of a SEPARATE Comiuission against one, or more, of 
 the Partners. 
 
 Effect of 
 joint coin- 
 
 Effect of a 
 separate 
 commis- 
 sion as to 
 bankrupt 
 partner. 
 
 A joijit commission against partners, followed by an 
 assignment of the estate and effects, puts an end of neces- 
 sity to the entire partnership ; as all the joint stock and 
 effects, with which the trade could be carried on, become 
 thenceforth vested in the assignees. And, in the same 
 manner, a separate commission against one partner, followed 
 by an adjudication that he is a bankrupt, determines the 
 partnership also, as to hi7n, and avoids all his acts(l) from 
 the day of the bankruptcy. It amounts in fact to a sever- 
 ance of the joint-tenancy subsisting between him and the 
 other partners (2) ; and his assignees become thenceforth 
 tenants in common with the solvent partner in all the 
 partnership effects. But they cannot sue for any debts or 
 
 (l) Thomason v. Frere, 10 East, 
 418. Hague V. Rolleston, 4 Burr, 
 2174, 
 
 (2) Barker v. Goodair, 1 1 Vcs. 
 78." Ex parte Smith, 5Vcs.295.
 
 Sect. I.] OF PARTNERS. 631 
 
 effects of the partnership, without joininjr the solvent lW<^c^ ']!' 
 partner as a plaintiff in tlie action (1), or liis personal ,.^w' 
 
 representatives (2) in the event of his death; for the as- 
 
 signees of the bankrupt partner take the partnersiiip pro- 
 perty, subject of course to all the rights of the solvent 
 partner. (3) A separate commission, indeed, against one 
 partner so completely dissolves the partnership, that in a 
 case, where a solvent partner after the act of bankruptcy 
 of his co-partner indorsed a bill in the name of the firn), 
 Lord EUenborough held, that an action could not be 
 maintained by the indorsee against the tvoo iuirLncr& as in- 
 dorsers ; for that at the time of the indorsement the bank- 
 rupt partner had no longer any interest in the bill, and 
 was incapable of exercising any act of ownership over it, 
 the partnership having then ceased to exist. (4) 
 
 With resi:>ect to the validity of acts done by the solvent Effect of 
 partner, in the disposal of the partnership property after cmnmis- 
 the act of bankruptcy of his co-partnei, there seems to be sion as lo 
 
 some difference between the decisions at law, and those in ^''"f ^ 
 
 ' . partner. 
 
 equity and hanlinqHcy. At laiso, it has been hokien that Decisions 
 such a transfer of the partnership property, for a valuable «it law. 
 consideration and without fraud, is valid against the as- 
 signees — on the ground that the purchaser, or person to 
 whom the property is transferred, thereby becomes a 
 tenant in common with the assignees of the chattel or pro- 
 perty so transferred — and that, as one tenant in common 
 cannot sue another, so neither can the assignees in this 
 ease bring an action of trover to recover the property 
 back. (5) In the absence of fraud, indeed, it seems that 
 by such a delivery the 'iSohole legal property is trans- 
 ferred (6) ; though Lord Kenyon is reported to have ruled 
 
 (1) Eckhardt v. Wilson, sT. R. (5) Fox \. Hanb lay, supm. Smit/e 
 140. V. Siokes, 1 East, 363. Smilli v. 
 
 (2) Foxv. Hanbiirij,Cow\).A'i^. Oriell, ibiil. 568.; and see Rams- 
 
 (3) Ibid. bottom v. Cator, 1 Star. 228. 
 
 {^) Ramsbottomw. Lewis, I C&m]}. (6) Per Lord K., 1 E^st, .jGO. 
 279. S. P. Tliomason v. Frere^ Per Bayley J. 5 M. & S. 542. 
 snpra; and sec Abel\. Sutton, sEsp. 
 108. 1 Camp. 2R1. note(b). 
 
 s « 4
 
 632 OF PARTNERS. [Ch. 15. 
 
 Effect of once at Nisi Prius, that it was only (rood for a moiety. (1 ) It 
 ruptcv. ^^^' ^^''^5 been more recently decided, that the circumstance 
 
 of the solvent partner hwoing notice of the act of bankruptcy 
 
 makes no difference in the case ; for where a solvent partner, 
 knowing of the act of bankruptcy of his co-partner, pro- 
 cured a debtor to the partnership to give his bill in part 
 satisfaction of the debt, and then indorsed it to a creditor 
 in payment of the residue of his demand on the partner- 
 ship, — such a transaction was held good against the as- 
 signees of the bankrupt partner. (2) In this case, certain 
 principles were laid down by the Judges, which seem to 
 throw great light on this subject, that was previously in- 
 volved in no small degree of obscurity. It was observed 
 by Lord Ellenborough, that though for future purposes 
 the act of bankruptcy operates as a dissolution, so as to 
 prevent the solvent partner from dealing with the partner- 
 ship property to the same extent as if the partnership 
 continued, yet that he has clearly a lien on the joint funds 
 in his hands, in respect of all claims v^'hich were consum-' 
 mate at the time of the bankruptcy : — and that, where the 
 solvent partner applies part of those funds in satisfaction 
 of such a claim, the assignees cannot bring an action 
 against the person to whom such funds have been so 
 transferred; at any rate, not until the partnership account 
 is taken, and it is ascertained whether the assignees are ' 
 entitled to recover a balance against the solvent partner. 
 For to entertain such an action, his Lordship added, 
 would be pregnant with all the inconveniences, that would 
 attend an action upon an unliquidated account between 
 partners. Mr. J. Bayley, too, in his judgment very for- 
 cibly points out the many difficulties that would ensue, if 
 the power of the solvent partner to dispose of the partner- 
 ship effects (in payment of a partnership debt) ceased by 
 the bankruptcy of the other partner ; and the present Lord 
 
 *■■ 
 
 (l) Whitwdly. Thompson^ \YA^\t. (2) Harvey v. Cr'vckett, 5 M. & 
 ^2. S. 356.
 
 Sect. 1.] OF PARTNERS. 633 
 
 C. J. Abbott (who took a part in this decision) said, that if Effect of 
 a solvent partner is not thus at liberty to apply the partner- ^^LL. 
 
 ship funds, he might be ruined in the midst of abundance 
 
 of property capable of paying all the debts ; and the cre- 
 ditors, also, would be compelled to wait until such time as 
 assignees are chosen, and it is their pleasure to make dis- 
 tribution. 
 
 It is difficult, however, to reconcile the following judg- Decisions 
 ments of Lord Eldon with this doctrine of the Court of ^^ •'' 
 King's Bench ; and, more especially, what he is reported to 
 have said in one case(l), namely, that all transactions 
 affecting the joint property are overreached by the prior act 
 of bankruptcy of one of the partners. In the first of these 
 cases, where a bill was filed by the assignees of a bankrupt 
 partner for an injunction against a joint creditor, who had 
 qf'ter the act of bankruptcy, though before the commission, 
 attached the partnership goods in the Lord Mayor's 
 Court, Lord Eldon granted the injunction — upon the 
 principle, that a separate commission severs the joint- 
 tenancy, and vests the bankrupt partner's share of the 
 joint property in the assignees, by relation from the act of 
 bankruptcy. (2) And the same order was made in another 
 case of a similar description, where the joint creditor had 
 even obtained judgment in the attachment (3) — his Lord- 
 ship expressing his opinion, that if, after an execution 
 against one partner, a commission of bankruptcy issues 
 against him upon an act of bankruptcy antecedent to the 
 execution executed, whatever may have been taken under the 
 execution becomes by relation the property of his assignees, 
 to be applied among all the joint creditors exactly as the ap- 
 plication is made in bankruptcy. And he afterwards acted 
 upon this opinion in a subsequent case, where joint effects 
 had been taken in execution after an act of bankruptcy 
 committed by one of the partners — in which he held, that 
 
 (1) Barker v. Goodair, 11 Ves. (5) Duttonv. Mormon, 17Ves. 
 •78. 193. 1 Rose, 21.5. 
 
 (2) Ibid.
 
 634- OF PARTNERS. [Cll. 15. 
 
 Effect of the assignees were entitled to the property so seized (1); 
 
 ruvtcu ^^^' '^^'' ^^^ partnership being put an end to the moment 
 an act of bankruptcy was committed by one of the part- 
 ners, a creditor could only take the interest of that partner 
 subject to the partnership dealings. (2) 
 
 With respect to these very opposite judgments in Bank- 
 ruptcy and at Law, there is certainly one difference in the 
 facts upon which they are founded ; but it does not seem to 
 be very material for the purpose of the argument. In the 
 cases decided at law, the creditor got possession of the pro- 
 perty iioith the consent of the solvent partner ; in those de- 
 cided in equity, possession was obtained iioithoid his cotisent, 
 but still by due process of law, in satisfaction of a just 
 debt. 
 
 Where There is one case, however, which has been decided in a 
 
 joint pro- ... . , . • i i 
 
 party at- court or equity, not quite so much at variance witli the 
 
 tiiched in decisions at law, and in which Sir W. Grant determined, 
 Indies and ^^^^^ where a joint creditor of a partnership (principally 
 separate carried on in the West Indies) had attached joint property 
 sion in ' there, the assignees of one of the partners (who became 
 England, bankrupt in England) were entitled only to the surplus of 
 the property in the hands of the creditor after satisfaction 
 of his joint debt; and this, upon the ground, that the West 
 Indian solvent partners could not be controlled in the manage- 
 ment of their trade, or restrained by any proceeding here, 
 from paying and applying the partnership assets as they 
 thought fit. (3) 
 Where a A partner, it has been held, may have no interest in the 
 
 partner property of the partnership, thoujjh he may be interested 
 
 interested -^ -^ -^ ^ i ' n j 
 
 in thepro- in xheprofits of the concern — Sir J. Mansfield saying, that 
 
 Jits, but there was a clear distinction between being partners in 
 not in the , , , • .... , . , , ,^ . 
 
 properly, goods, and being jointly interested in adventure. (4-; A 
 
 transfer of the property^ therefore, by such a partner (after 
 
 ( 1 ) In re Wait, 1 Jac. & W. 605. (3) Brickwood v. Miller, 3 Meriv. 
 
 (2) But see Hcydon v. Heydon, ^10. 
 
 Salk. 59-2. contra. (4) Per Mansfield C.J. and Gibhs 
 
 J. 5 Taunt. 79, 80.
 
 yCCt. 1.] OF PARTNERS. 635 
 
 the bankruptcy of the partner solely interested in such I'lff'cct of 
 
 property) is, of course, void as against the assignees. (1) ,.""/' 
 
 But, under a commission of bankruptcy, the property in 
 
 such a case is, nevertheless, administered (as to the joint 
 
 creditors) as belonging to all the partners. (2) 
 
 If one partner embezzles part of the partnership effects Wliorcthe 
 
 and becomes a bankrupt, his assignees can be in no better "''"'^''"I"^ 
 r ' ft partner 
 
 situation than the bankrupt himself, taking only such un- has em- 
 divided share or interest as the bankrupt himself had, and ^"-'^^'^'.^ 
 
 . . * part ot the 
 subject to all the rights and liens of the other partner ; they joint pro- 
 are, therefore, entitled only to the share of the balance re- P^''^v. 
 maining after the partnership debts are paid, and after the 
 deduction of the amount of the (3) embezzlement. 
 
 The assignees of the bankrupt partner take by the as- Assignees 
 
 signment all the interest, which the bankrupt himself was p^^j^^ 
 
 . , , , . ' , bankrupt 
 
 entitled to at the lime he became a bankrupt. Therefore, partner 
 
 where the bankrupt partner had advanced part of his share ^"tjt}^^ ^^ 
 
 of the expense of an adventure, and gave his notes for the interest 
 
 remainder, which did not become due until after the issuing however 
 
 f. , . . . I 1 1 1 1 1 uncertain, 
 
 or the commission — it was held, that the solvent partners jn a joint 
 
 could not (by discharging the notes) stand in his place, but adventure. 
 that the assignees were entitled to his full share in the 
 profits of the adventure — although the note creditors re- 
 ceived only a dividend under the commission, and it was 
 uncertain (at the time of the bankruptcy) whether the ad- 
 venture would be attended with profit or loss. (4<) 
 
 Where the solvent partners continued to carry on the Where the 
 partnership trade with the capital, as constituted at the time solvent 
 of the bankruptcy, — the assignees of the bankrupt partner continue 
 were held entitled (beyond an account and distribution of the busi- 
 the stock, &c.) to a participation of subsequent profits made 
 
 (1) Meyer v. Sharpe, ibid. 2 Vcrn. 29,5. Goss v. Dufresnoy, 
 
 (2) Ex parte Hunter, 2 Rose, Davies, 371. 
 
 582. (4) Smith v. De Sylva, Cowp. 
 
 (5) Richardson v Gooding, 4(i9.
 
 636 
 
 OF PARTNERS. 
 
 [Ch.li 
 
 Effect of 
 bank- 
 ruptcy. 
 
 Rights of 
 solvent 
 partner as 
 to the sur- 
 plus. 
 Effect of 
 payment 
 of divi- 
 dend, as to 
 solvent 
 partner. 
 Conse- 
 quences of 
 bankrupt 
 partner 
 embez- 
 zling joint 
 property. 
 
 by the solvent partners, as far as the profits might have 
 been produced by an application of such capital. (1) 
 
 If there is a surplus under a separate commission against 
 the bankrupt partner, the solvent partner may apply by 
 petition for an account of such surplus, and for payment of 
 his proportion of it. (2) 
 
 The payment of a dividend, under a commission against 
 one partner, raises a new assumpsit by the other, so as 
 to deprive that other partner of the benefit of the statute of 
 limitations. (3) 
 
 Where a solvent partner had paid the other before his 
 bankruptcy a sum of money to be applied in discharge of 
 a joint debt, and the latter converted the money to his own 
 use — and the solvent partner was, after the bankruptcy of 
 the other, compelled to pay the whole debt to the creditor, — 
 the bankrupt partner was held in this case (by reason of 
 the fraud) not protected by his certificate, in respect of the 
 share of the joint debt paid by his copartner (4) after the 
 bankruptcy. This case, however, was decided before Sir 
 Samuel Romilly's act; which first enabled a surety, paying 
 money after the bankruptcy of the principal, to prove it as 
 a debt under the commission. Therefore, if such a case 
 can be considered as divested o^ fraud on the part of the 
 bankrupt partner, and the solvent partner had an oppor- 
 tunity of proving under the commission, the certificate 
 would now operate as a discharge of the claim of the 
 solvent partner. 
 
 (1) Crawshay v. Collins, 15Ves. (3) Ex parte Dewdney, IsVes. 
 218. 499. 
 
 (2) Ex parte Lanfear, 1 Rose, (4) Wright v. Hunter, 1 East, 
 442. 20.; and see ante, 612.
 
 Sect. 2.] OF PARTNERS. 637 
 
 Section II. 
 
 Wfiat is JOINT, and tsohat separate, Property under a Joint 
 or Separate Commission. 
 
 When a separate commission issues against either one or Interest of 
 
 more members of a partnership, all transactions aflPecting the *■^^ ^^ 
 
 siffnGCS 
 joint property have been said to be overreached by the act under a 
 
 of bankruptcy of the bankrupt partner, that is, so far as separate 
 that a joint creditor will not (as we have just seen) be sion. 
 allowed afterwards to proceed against the joint effects by 
 foreign attachment (1) — the assignees of the bankrupt 
 partner taking all the separate property, and all the bank- 
 rupt's interest in the joint property, and holding the latter 
 as tenants in common with the solvent partner. The as- 
 signees of the bankrupt partner, however, are not strictly 
 partners with the solvent partner ; though a necessary com- 
 munity of interest remains between them till the partnership 
 affairs are thoroughly wound up, requiring that what was 
 partnership property before, shall continue so for the pur- 
 pose of a distribution among the partnership creditors, as well 
 as of a division of the surplus in proportion to the respective 
 interests of the partners. (2) And the arrangement of such 
 interest will be made, not as the partner stood at the time 
 of the commission (3), but of the act of bankruptcy. The 
 right of the assignees, as to the joint property, has been 
 said to be derived more from the rule of the common law, 
 (as far as it respects trade between partners) than from any 
 rule arising out of the bankrupt laws; and the interest 
 which they take in it can only be made available, upon the 
 balance of accounts between the partnership and the bank- 
 rupt partner ; in stating which account enough must be left 
 to cover partnership debts. (4) 
 
 (1) Sad vide ante,page 631. etseq. (3) Ibid. 
 
 C'i) 6 Ves. \2iS. (4) Field v. , 4 Ves.397.
 
 638 
 
 OF PARTNERS. 
 
 [Ch. 15. 
 
 What 
 joint, and 
 what se- 
 parate 
 property. 
 
 Their 
 power as 
 to the 
 joint pro- 
 perty. 
 
 As to con- 
 solidating 
 joint and 
 separate 
 estates. 
 
 When 
 there is a 
 an assign- 
 ment by a 
 retiring to 
 a continu- 
 ing part- 
 ner. 
 
 The assignees, therefore, under a separate commission 
 are entitled to deal with the joint property, as the solvent 
 partner himself might have dealt with it — that is to say, 
 paying all the joint creditors equally as far as the joint pro- 
 perty goes, and applying the surplus under all the equities 
 subsisting between the partners. ( 1 ) Under special circum- 
 stances, however, an injunction may be applied for by the 
 solvent partner against the sale of the property by the as- 
 signees, upon his offering to account (2) ; but this, it is 
 apprehended, will only be granted where a sacrifice is 
 about to be made of the property, or there is some irregu- 
 larity in the sale ; or, where the solvent partner engages to 
 pay over to the assignees the value of the share of the 
 bankrupt partner in the property offered for sale. 
 
 It is sometimes thought expedient to consolidate the 
 joint and separate estates ; but the Lord Chancellor will 
 not sanction such a measure, without a reference to the 
 commissioners to inquire and report, whether such a pro- 
 ceeding would be for the general benefit of the creditors. (3) 
 
 The equities subsisting between partners involve the 
 consideration of the effect of an assignment of partnership 
 property by a retiring to a continuing partner — and, in what 
 cases, any portion of the joint property of the partnership 
 becomes (by such assignment) separate estate. This depends 
 altogether upon the bona Jides of the transaction between 
 the partners, and the non-interference of the joint creditors 
 at the time of the transaction. The mere dissolution of a 
 partnership, indeed, does no more than declare that the 
 partnership is not to be carried on any further, except for 
 the purpose of winding up the concerns ; and he, who has 
 the actual possession of the joint property, has it (in that 
 event) clothed with a trust for the other, to apply it in pay- 
 ment of the joint debts. This will so far qualify the nature 
 
 (1) Barker v. Goodair, llVes. 
 85. Uutton V. Morrison, 17 Vcs. 
 209. Hanhcy v. Garrett, 5 lire. 
 457. 1 Ves.jun. 256. 
 
 (2) Al/en T. Kilhic, 4 Mad. 464. 
 (.3) Ex parte Siriilf, 1 G. & J.
 
 8eCl. 2.] OP PARTNERS. 639 
 
 of his possession, that the specific effects or debts will not ^Vfiat 
 be considered to be solehj in his order and disposition, to '^"fjfgj! 
 the prejudice of the claims of the other partner. But, if pfiraic 
 upon a fair and open dissolution of a partnership, the V^^P^^- 
 })artner retiring, either by deed or otherwise, bond Jide 
 transfers his interest in the partnership effects to the con- 
 tinuing partner — who afterwards carries on the trade and 
 becomes a bankrupt before ail the joint creditors have been 
 paid ; — in this case, thejoint creditors have no equity, either 
 upon the partnership effects remaining in specie, or the 
 outstanding debts. (1) Therefore, where an outgoing part- 
 ner assigned by (Xi^itiS. his share of the stock to the continuing 
 partners, and they and a surety covenanted that they would 
 in due time discharge all the jiartnership debts, and in- 
 demnify the outgoing partner — and six months after the 
 dissolution, the continuing partners became bankrupt, and 
 the outgoing partner was arrested by creditors of the old 
 partnership ; — he was held, upon petition, not entitled to 
 have the specific stock and debts of the old partnership 
 applied in satisfaction of the creditors of that partnership, 
 in prefeience to the creditors of the (2) new firm. In such a 
 case, however, it is very easy for a retiring jiartner to pro- 
 vide for his own indemnity, by assigning all the effects 
 upon trust to pay the debts. (3) But, where a retiring 
 partner assigned the partnership estate and effects to a 
 continuing partner, in consideration of the continuing 
 partner accepting certain bills of exchange — and afterwards 
 the continuing partner having refused to accept the bills, 
 
 (l) Ex parte Ruffin, G Ves. 1 19. thought also, there was a material 
 Ex parte Williams, 11 Ves. 3. Ex distinction in that case; inasmuch 
 parte Sloio, C. B. L. 509. ; and see as the assignment there was, not 
 ex parte Harris, 1 Mad. 5S3. There by one partner to the otiier two, 
 is an old case before Lord Hard- but only to one of the other two. 
 wicke, (ex parte Burnaby, 1 C. B. It does not, moreover, appear in 
 L. 246.) which seems somewhat at that case, that the assigning part- 
 variance with the doctrine in the ncr had actually retired from the 
 text. It is not, however, (as Lord business. 
 
 Eldon observed in ex \ydrte Riijtiji) (-2) Ex parte Felt, 10 Ves. 547. 
 very intelligible ; and his Lordship (3) Ibid.
 
 §40 OF PARTNERS. [Ch. IS. 
 
 What an injunction was granted against him, and a receiver ap- 
 
 "u^katsc- pointed upon a bill filed by the retiring partner; — upon 
 2)aratc the subsequent bankruptcy of the continuing partner, it 
 p ropc) y . ^^g held, that the previous interference of the court re- 
 stored the property to its original character as joint pro- 
 perty, unless the plaintiff in equity had (by his conduct 
 between the time of his obtaining the injunction and 
 the bankruptcy) rendered nugatory the eflfect of such in- 
 terference. (1) 
 Where the Upon a dissolution of partnership between A. and B., 
 joint pro- jj. ^^g agreed, that until A. was provided for, B. should 
 in the pos- continue the business, and allow him a third of the profits : 
 
 session of g^ afterwards formed a partnership with C, and carried 
 the con- ., ir '-rii 
 
 tinning into it the stock of A. and B., and a commission of bank- 
 partner. j.ypj. issued against B. and C. ; — it was held, under these 
 circumstances, that the joint property of A. and B. having 
 been permitted by A. to become property visible to all the 
 world of the new partnership of B. and C, the share of 
 B. in the residue of the joint effects was the separate pro- 
 perty of B., and subject to the payment of his separate 
 creditors. (2) 
 When new Where new partners, however, are taken into a trade — 
 are taken ^'^^ ^^ ^^ agreed that the stock, and the debts due to the 
 in, as to old firm, should become the capital of the new partnership, 
 the new ° ^'^^ ^^^^ ^^® "^^ ^^Vii should take upon itself the payment 
 capital. of the debts of the old firm — and the new partnership be- 
 came bankrupt ; — in this case, the joint effects of the new 
 firm were held liable to the joint creditors of the old firm, 
 as well as to the joint creditors of the new firm. (3) 
 Assign- But, though partners may bona Jide agree to dissolve 
 
 ment will ^jjgjj. partnership, and that what was joint property before 
 efFect, un- shall thenceforth become the separate property of him who 
 
 less ac- continues the business, vet such agreement will have no 
 companied ' •' ^ 
 
 ( 1 ) Ex parte Rowlandson, 1 Rose, (3) Ex parte Bingham, 1 C. B. L. 
 516, 2 Ves. & B. 172. 538. Ex parte C7oM;e«, 2 Bro. 595. 
 
 (2) Ex i^?Ltie Barrow, 2 Rose, iC.B. L. 250. In re Staples, ihiA. 
 252. 538. Ex parte Peck, 6 Ves. 602.
 
 Sect. 2.] or partners. tHl 
 
 effect, unless possession of the property be given pursuant to W^''^^ 
 
 1 i 1 -^ 1 • /- 7 • 1 joint, and 
 
 the contract. And, it there is any Jraud in the trans- ^^y^^^ g^_ 
 
 action — as if one partner retires when the partnership is pa?a^e 
 
 really insolvent, and (before the partnership debts are dis- ^ ""P^' ^ ' 
 
 charged) the continuing partners pay to him large sums of with pos- 
 
 money on account of his share in the business, — such ' ^ 
 
 .... Where 
 
 payments are fraudulent and void against the joint ere- payments 
 
 ditors. (1) But the mere circumstance of the partnership to retiring 
 
 being insolvent, at the time of the dissolution of it by the tvaudulent. 
 
 retirement of one partner, will not alone be sufficient to 
 
 invalidate a dissolution fairly made, however it may affect 
 
 his rights to his share of the property, as against the then 
 
 joint creditors. (2) 
 
 If real estates are purchased with the partnership funds, Where 
 though conveyed only to one partner, they are nevertheless pm-chased" 
 partnership property. But if estates are purchased with with part- 
 the partnership fund, and conveyed to one partner under a "^''^"P 
 specific agreement that the estates shall be his, and that he 
 shall be debtor for the money to the partnership, the 
 estates are in this case his separate property. (3) 
 
 Where one of two partners purchased ships with the As to ships 
 
 partnership property — and upon a discovery of the trans- ^l^/t of 
 
 action by the other partner, the ships were brought into partner- 
 
 the partnership account, and the disbursements paid out f P . J^, ^' 
 
 of the partnership funds, but the registei's continued un- tered in 
 
 altered, for the purpose of enabling; the other partner to "^'"^ ^^ 
 1 1 • 1 • I 1 r 1- ^"^ part- 
 
 evade penalties, to which (as a member or parliament) he ner. 
 
 would have been liable on account of the ships being em- 
 ployed in the service of government — and upon his death 
 a commission of bankrupt was issued against the partner, 
 in whose name the ships were registered ; — it was held, 
 
 (l) Anderson v. Maltby, 4 Bro. the assignee. Whitivellx. Thomp- 
 
 423. sVes. jun. 244. A fraudulent son, lEsp. 68. 72.j and see ante, 
 
 assignment of property by one page 74. 
 
 partner to another, though an act (2) Ex parte Peake, 1 Mad. 353. 
 
 of bankruptcy in the assignor, does (3) Smith v. Smith, 5 Ves. !89. 
 
 not, as we have before had occa- Lyster v. Dollond, 1 Ves. jun. 435. 
 
 sion to observe, amount to such in Thornton v. Dixon, 3 Bro. 199. 
 
 T T
 
 642 
 
 OF PARTNERS. 
 
 [Ch. 15. 
 
 What 
 
 jo'nl, and 
 ivliai se- 
 parate 
 proi^erty. 
 
 Whether 
 registry 
 conclusive 
 proof of 
 ownership. 
 
 Insurance 
 of interest 
 of joint 
 owner. 
 
 Where 
 three part- 
 ners sell 
 their goods 
 elsewhere 
 in the 
 name of 
 two. 
 
 Liability 
 of joint 
 estate to 
 expenses. 
 
 When 
 property 
 considered 
 as joint 
 property. 
 
 uTuler these circumstances, that the ships were distributable 
 as the separate property (l) of the bankrupt partner. This 
 case was decided with reference to the policy of the then 
 registry acts, the 26G. 3. c. 60. and S^ G. 3. c. 68.; and 
 other cases also, under those acts, have decided that the 
 registry of a ship was conclusive evidence of property, 
 even against the claim of creditors upon a joint pur- 
 chase (2), and various acts of apparent ownership. In a 
 subsequent case, however, under a commission against 
 two partners, it has been held, that where ships are pur- 
 chased or built, and paid for out of the partnership funds, 
 though they are registered in the name of one of the 
 partners, yet, being in the ordering and disposition of both, 
 the ships form part of ihe joint estate. (3) 
 
 If one joint owner of a ship insures his share or interest, 
 and a loss happens, the money recovered upon the insurance 
 will be separate property. (4) 
 
 Where three partners were manufacturers in Lancashire, 
 and sold their goods in the name of ivoo only, and a credit 
 was acquired by them, as three in Lancashire, and two in 
 London, — the distribution of their property in Bankruptcy 
 was held to be, where the order and disposition was at the 
 time of the bankruptcy. (5) 
 
 Whatever expense assignees under a separate com- 
 mission have been put to in getting in the joint estate, 
 must be reimbursed out of the joint estate. (6) 
 
 Although the property of a partnership be only in 07ie or 
 more members of it, with an interest in the profits merely 
 in the others, — yet, in Bankruptcy, the property is ad- 
 ministered, with respect to the claims of the joint creditors, 
 as belonging to all the partners. (7) 
 
 (1) Curtis V. Perry, 6 Ves. 739. 
 
 (2) Camden v. Anderson, 3 T. R. 
 709. Ex parte Yallop, 15 Ves. 60. 
 Ex parte Hojig/iton. Ex parte 
 Gribble, 17 Ves. 251. 1 Rose, 177, 
 
 (3) Ex parte Burn, 2 Jac, & W. 
 378.; and see ante, 421. 
 
 (4) Ex parte Terry, 5 Ves. 575. 
 Ex parte Brown, 6 Ves. 15G. 
 
 (5) In re Shakeshqft, cit. 6 Ves. 
 747. 
 
 (6) Ex parte Rutherford, iRosc, 
 201. 
 
 (7) Ex parte Hunter, 2 Rose, 
 382.
 
 Sect. 3.] OF PARTNERS. 643 
 
 Section III. 
 What is a joint, and 'what a separate, Debt. 
 
 A partner, dealing in the name of the partnership, may "When one 
 by simple contract bind his copartners without their express P^''t"fi' 
 assent (1); and this even in a matter not reJatmg to the his co- 
 partnership, provided the person, with whom such partner Partners. 
 deals, has no notice that he is dealing on his separate 
 account. But, if it is manifest to a person advancing money 
 to an individual partner, that it is upon his separate account 
 (and therefore against good faith that such partner should 
 pledge the partnership), it is then incumbent on the person 
 dealing with him to shew, that the partner had some autho- 
 rity to bind the partnership (2) ; otherwise the firm will not 
 be liable. Therefore in a recent case, where one partner 
 gave an acceptance in the name of the firm, in satisfaction 
 of his own private debt, and isoithout the knowledge of his 
 co-partner, the Vice- Chancellor held that such an accept- 
 ance did not bind the joint estate. (3) 
 
 The authority, indeed, of one partner in drawing or Authority 
 
 accepting bills is only an implied authority, and may be j-? ^^cept 
 
 rebutted by express previous notice to the party taking the be rescind- 
 
 bill, that the other partner would not be liable for it, — even ^^ ^^ "°" 
 
 . tice of the 
 
 though the partner giving the bill represented to the holder, other 
 
 that the money (advanced by him as a consideration for partner, 
 the bill) was to be applied to partnership purposes — and 
 though the greater part was in fact so applied. (4) Where 
 the other partners, however, are in any way privy to the 
 transaction, and permit him to go on with it, or to re- 
 peat it, without expressing any disapprobation, they will 
 then be considered to have approved of the act of the 
 
 (1) Ex parte Gardome, 1 5 Yes. (3) Ex parte Goulding, Sittings 
 286. after Trinity Term, 1826. 
 
 (2) Ex parte Peele, 6 Ves. 602. (4) Lord Galway v. Mathew, 
 Arden v. Sharpe, 2 Esp. 524. 1 Camp. 403. 10 East, 264. 
 
 T T 2
 
 644 
 
 OF PARTNERS. 
 
 [Ch. IJ 
 
 What a 
 Joint, or 
 separate 
 debt. 
 
 When mis- 
 application 
 of trust 
 money by 
 one part- 
 ner- 
 
 Where a 
 new part- 
 ner bound 
 by an en- 
 gagement 
 of the firm 
 for an old 
 debt. 
 
 Where 
 money ap- 
 plied for 
 partner- 
 ship pur- 
 poses, with 
 the privity 
 
 partner so pledging the partnership name ; and such sub- 
 sequent approbation will be equivalent to previous con- 
 sent. (1) And the act of one partner, done with reference 
 to business transacted by the firm, will bind all the 
 partners, although it be out of the regular course of trade, 
 and be contrary to an express arrangement amongst them- 
 selves ; because it is within the scope of his authority. (2) 
 
 If one of several partners apply trust property, isoith the 
 privity of the other partners, to the purposes of the partner- 
 ship, the debt may be proved either against the joint 
 estate, or the separate estate of the partner so misapplying 
 the money. (3) But if the other partners have no knovoledge 
 whatever that the money is tt'ust money, then there can be 
 no proof against the joint estate. (4) 
 
 Where partners, who have previously contracted debts, 
 take a fresh person into partnership, and give paper of the 
 new firm to a creditor in payment of a previous debt, such 
 transaction (without evidence of the assent of the new 
 partner) will not be binding upon him (5), provided the 
 party taking the security had either actual knowledge, or 
 by necessary inference must have known, that the pay- 
 ment was without the consent of the new partner. But, 
 where the creditor receives it hondjide without such know- 
 ledge at the time, no subsequently acquired knowledge, of 
 the misconduct of the partner giving the security, can dis- 
 affirm the transaction, (6) 
 
 The joint responsibility of partners cannot be established, 
 after the separate liability of a single partner was originally 
 contemplated. (7) But in a case, where a bill was drawn 
 by one of the partners upon the partnership firm with the 
 privity of the other partner, which, though not accepted, 
 
 (1) Ex parte BoTibonus, 8 Ves. 
 541. 
 
 (2) Sandilands v. Marsh, 2 B. & 
 A. 673. 
 
 (3) Ex parte Watson, 2 Ves. & 
 B. 414. Smith V. Jameson, 5 T.R. 
 601. 
 
 (4) Ex parte Apsey, 3 Bro. 265. 
 Ex parte Heaton, Buck, 38 C. 
 
 (5) Sherriff\. Wilks, 1 East, 48. 
 Hope V. Cust, cit. ibid. 
 
 (6) Swan V. Steele, 7 East, 210. 
 Ridley v. Taylor, 13 East, 175. 
 
 (7) Fmly v. Lye, 1 5 East, 7.
 
 Sect. 3.] OP PARTNERS. 645 
 
 was discounted by the payee, and the proceeds applied to What a 
 the use of the partnership, — it was held, that the payee '^^'"^' 7* 
 might sue both partners for the money, although they had debt, 
 incurred no joint liability on the bill. (1) And the same, ^ ,. , 
 where a holder had discounted bills drawn by one partner partners, 
 and indorsed by another, and the money received by means 
 of the bills had been applied for partnership purposes. (2) 
 
 Where a, joint creditor of a partnership takes the separate As to tak- 
 security of one of the partners, the others are thereby dis- '"° ^^P"" 
 
 Tdtc SCCU- 
 
 charged (3), unless their liability be expressly reserved. (4) rity of one 
 But mere information to a creditor, that a partnership was Partner for 
 dissolved, and that one of the partners had taken upon debt, 
 himself to discharge the creditor's debt, was held not to 
 bar him of his right against the other partner, notwith- 
 standing even the creditor might expressly agree to 
 exonerate the other partner from all responsibility ; for 
 an agreement to abandon a legal claim, unless there be 
 a consideration shewn, is a mere rmd%im pactum ; and the 
 arrangement between the partners will not deprive the 
 creditor of his original claim, unless he is a party to it 
 himself, and it amounts to satisfaction. (5) 
 
 In the case of a dormant partner — when the ostensible When a 
 
 partner accepts bills in his own name, though the creditor ^o""'"^"!^ 
 
 .11-1 » . . partner 
 
 has no notice that there is a dormant partner at the time he liable. 
 
 takes the bills, this will not be a discharge of the dormant 
 
 partner, but he will become liable the moment he is known 
 
 to the creditor. (6) Wherever, indeed, there is a dormant 
 
 partner, and the fact was unknown to the creditor, it is an 
 
 invariable rule in Bankruptcy, that the creditor has an 
 
 option to consider his debt as either (7) joint or separate. 
 
 (1) Denton v. Rodie, 5 Camp. (6) Robinson v. Wilkinson, 3 Pri. 
 493. 638. 
 
 (2) Ex parte BolUho,Back,'[00. (7) Ex parte Hamper, 17 Ves. 
 Is) Evans V. Drmmnond, 4 Esp. 403. Ex parte Alaihews, 18 Ves. 
 
 89. Reedv White, 5 Eap. 122. 125. Ex parte Hodg/dnson, IsYes. 
 
 (4) Bedford v. Deakin, 2 B.& A. 294. Ex parte Norfolk, ibid. 458.; 
 210. 8,nd see Binford v. Dommett, 4 Ves, 
 
 (5) Lodge V. Dicas, 3 B. & A. 756. 
 611, 
 
 T T 3
 
 S'i^G OF PARTNERS. [Ch. 15. 
 
 What a But it has been decided in the Common Pleas (a decision 
 
 'I'eparate ^vhich certainly appears far less reasonable), that a de- 
 
 debt. fendant in an action may plead in abatement, that he has a 
 
 ft - jj^_ dormant partner; though the plaintiff had even no means 
 
 ing him in of knowing of the partnership, and could not have proved 
 
 an action. ^^^ |,,^^.| |^g joined the secret partner in the action (1) ; thus 
 
 enabling the defendant to take advantage of his own 
 
 wrong, and impede the plaintiff in the recovery of a just 
 
 debt : for, though a plea in abatement does not entirely 
 
 bar the plaintiff's claim, but merely gives him a better 
 
 writ, it nevertheless occasions him considerable delay and 
 
 expense — and this without any default of his own. 
 
 Section IV. 
 
 Of Proof hy joint Creditors against the joint and 
 separate Estates. 
 
 The creditors of a partnership, who are denominated in 
 
 Bankruptcy the joint creditors, are entitled to a distribution 
 
 of the joint or partnership estate, without the participation 
 
 of the separate creditors of any individual partner, until 
 
 How joint the joint creditors have received 20s. in the pound. And, 
 
 rateest^^es ^^ the joint or partnership estate is, in the first place, to be 
 
 to be ap- applied to pay the joint or partnership debts, so in like 
 
 plied. manner the separate estate of each partner must be first 
 
 applied to pay all his separate debts. It is proposed, in 
 
 this section, to confine our attention to the rights of proof 
 
 by a joint creditor against the joint and separate estates, 
 
 either where a joint commission is issued against all the 
 
 partners, — or where there are separate commissions, or a 
 
 separate commission, against all or any of the partners. 
 
 The rights of the joint, as well as of the separate creditors, 
 
 are in each of these cases settled and arranged by the 
 
 (1) Dubois V. Ludcrt, 1 Marsh, 246,
 
 Sect. 4.] OF PARTNERS. 647 
 
 general order of Lord Loughborough ( 1 ), which has been Proof by 
 
 JOINT 
 
 dilors. 
 
 the rule commonly referred to for determining the right ^'^^^^ ^'^' 
 
 of proof against the joint and separate estates. 
 
 By this order it is, amongst other thinu;s, directed, that Lord 
 
 tlie commissioners cause distinct accounts to be kept of the ^ ^"^ . °" 
 
 joint estate, and also of the separate estate or estates ; and der as to 
 
 in case there shall be any overplus of the separate estate or '^^^P'"g 
 "^ '^ , ^ accounts 
 
 estates, after all the separate creditors shall be paid and distinct. 
 
 satisfied their whole demands, it shall be carried to the 
 
 account of the joint estate, and be applied in or towards 
 
 satisfaction of the joint debts. (2) 
 
 In all commissions, too, against one or more of the As to 
 partners of a firm, it is now enacted by the 62d section of pi"oo^by 
 tne new statute, that SL'jotnt creditor shall be entitled to ditor un- 
 prove his debt under each commission — but for the purpose '^^^' '^^P^' 
 only of voting in the choice of assignees, and of assenting missions. 
 to, or dissenting from, the certificate. (3) And he is de7 
 clared to be not entitled to any dividend out of the separate 
 estate, until all the separate creditors shall have received 
 the full amount of their respective debts, unless such cre- 
 ditor shall be the petitioning creditor in a commission 
 against one member of a firm ; in which last case, indeed, 
 he is then considered as a separate creditor. (4) 
 
 This enactment accords in some measure with the old rule, Rule when 
 
 as to the right of proof against the joint and separate estates, there are 
 ° ^ ... no joint 
 
 That rule, though acted upon in principle by Lord Hard- effects. 
 
 wicke, was abandoned on many occasions by Lord Thurlow, 
 who, when there were no joint effects, permitted joint cre- 
 ditors to prove under separate commissions, and to receive 
 dividends rateably with the separate creditors. (5) And in 
 
 (1) 8th March, 1794. certificate; but they were not per- 
 
 (2) And see Ex parte Baudier, uiitted to vote in the choice of 
 1 Atk. 98. Ex parte Oldknow, 1 C. assignees. 
 
 B, L. 235. Ex parte Cobham, ibid. (4) Ex parte Hall, 9 Ves. 549. 
 
 254. Ex parte Acker man, 14 Ves. 604. 
 
 (5) The former practice was to Ex parte De Tastet, 1 Rose, 10. 
 
 allow the joint creditors, upon pe- 17 Ves. 247. 
 
 tition, to prove for the purpose of (5) Ex parte Haydon, 1 C. B. L. 
 
 assenting to, or dissenting from, the 234. 
 
 T T 4
 
 648 OF PARTNERS. [Ch. 15. 
 
 Proof hy other cases (without adverting to the consideration whether 
 JOINT ae- jj^gj^.g ^.gj-e any joint effects or not) when the justice of the 
 
 case required it, he allowed the same proof, — declaring, that 
 
 debts, whether sole or joint, ought to be paid out of a 
 bankrupt's estate; which, in the case of a partnership, he 
 observed, was composed of his separate estate, and of his 
 moiety of the (1) joint estate. And the principle he acted 
 upon was this — that a joint creditor should not be de- 
 prived by a commission of bankruptcy of the rights, which 
 he possessed at law against the separate estates, as well as 
 against the joint estate. For, if a joint creditor of several 
 partners had brought an action against all, he might have 
 taken out separate executions against each ; and, therefore, 
 a commission of bankruptcy — being an execution for all 
 the creditors, and preventing him from suing out his exe- 
 cution at law with effect — ought to be considered (at least) 
 as beneficial an execution for /«"«?, as for any other creditor 
 of the bankrupt. But this principle was entirely departed 
 from by Lord Loughborough, whose decision has been 
 subsequently followed by Lord Eldon ; and it is now a 
 settled rule, that a joint creditor is not entitled to receive 
 dividends from a separate estate — if there is any joint 
 fund (however small in amount) or any solvent partner — 
 until the separate creditors are paid 20s. in the pound. (2) 
 If the joint property, however, be of such a nature and 
 in such a situation, that any attempt to bring it within 
 the reach of the joint creditors must be deemed a des* 
 perate, or (in point of expense) an unwarrantable attempt, — 
 such a case, it has been admitted, would authorise a de- 
 parture from the rule, on the ground that there would 
 then be in truth no joint property. (3) And so, where the 
 only joint effects were such as were pledged for more than 
 
 (1) Ex parte Hodgson, 2 Bro. .5. parte Taift, 16 Ves. 193. Ex parte 
 Ex parte Pnge, ilnd. 119. Ex Fea/ce, 2 Rose, 54. In re Lee, 
 parte Fimtum, ibid. 120, Ex parte ibid. note. 
 
 Coj^land, 1 C. B. L. 2.'56. (5) Ex parte Pcakc, 2 Rose, 54. 
 
 (2) Ex parte Clay, 6 Ves. 813. per Lord Eldon. 
 Ex parte Sadler, IsV'^es. 52. Ex
 
 Sect. 4.] OF PARTNERS. 649 
 
 their amount ; for in this case it was likewise considered, Proof by 
 that there were no joint effects under the administration of ^/^/J^J/*^^' 
 the assignees to distribute. (1) 
 
 (1) Ex parte Hill, 2 N. R. 1 91 a. 
 The exclusion, in Bankruptcy, of 
 joint creditors from a share of the 
 separate property, bears no analogy 
 to proceedings at law, which give 
 a joint creditor the right to coa)e 
 (under an execution) at once 
 against the separate estate of his 
 joint debtor, as well as against the 
 joint estate, until he has satisfied 
 his debt. The propriety of such ex- 
 clusion, too, seems somewhat diffi- 
 cult to be supported ; for, as SirW. 
 Evans has justly observed, (Evans's 
 Bankrupt Stat. 211.,'! it should be 
 recollected, that the credit obtained 
 by a partnership is often founded, 
 not so much upon a consideration 
 of the capital, which may be sup- 
 posed to be invested in the con- 
 cern, as upon the known personal 
 opulence of the several individuals 
 who compose it. And the above 
 rule, of not permitting joint credi- 
 tors to prove against the separate 
 estate, if there is any portion of 
 joint property, however small the 
 amount, it must be confessed, is 
 often inconsistent in its operation, 
 and productive of great injustice 
 when carried to the extent to 
 which it sometimes is. For in- 
 stance, if the joint effects amount 
 only to 1/. lis. 6d, (Ex parte 
 Peake, 2 Rose, 54.) the joint credi- 
 tors are refused permission to take 
 dividends under any of the separate 
 estates before the separate credi- 
 tors are paid 2Qs. in the pound; 
 whilst, if there should happen (for- 
 tunately for the joint creditor) 
 to be not a farthing of joint pro- 
 perty, he is then permitted to 
 receive from every one of the 
 separate estates an equal dividend 
 with every separate creditor. Mr. 
 Christian, in his Treatise on tlie 
 former Bankrupt Laws (vol. ii. 36.), 
 
 as well as Sir William Evans in his 
 letter to Sir Samuel Romiliy, very 
 ably demonstrate the inconsistency 
 of the rule, and the absurd conse- 
 quences which follow from too 
 strict an adherence to it. As sup- 
 pose a case, where there are five 
 partners, each having a separate 
 estate of 20,eoo/., and separate 
 debts to the same amount, and the 
 joint debts amount to 100,000/. — if 
 there should be only 10/. worth of 
 joint property, this would be all that 
 could be divided among the joint 
 creditors until the separate credi- 
 tors are paid in full ; a joint cre- 
 ditor of 20,000/. would, therefore, 
 not get a farthing in the pound, 
 while the separate creditor to the 
 same amount would receive the 
 whole of his debt. On the other 
 hand, if there should be no joint 
 estate, then each joint creditor 
 would be admitted to prove against 
 every separate estate, and would 
 accordingly receive 5s. 4d. in the 
 pound from each separate estate, 
 amounting to \ 6,6661. 185. 4d. in 
 the whole — while each separate 
 creditor would receive only 5s. 4d. 
 in the pound from one estate, 
 amounting but to 3533/. 6s. 8d. 
 So that from the mere circum- 
 stance of there being no joint effects, 
 the joint creditor would get five 
 sixths, and the separate creditors 
 but one sixth of their debts. 
 
 A more equitable mode of dis- 
 tribution is suggested by Mr. Chris- 
 tian and Sir\VilliamEvans(Evans's 
 Bankrupt Statutes, 211.); namely, 
 that as each partner ought to pay 
 his own private debts, and his pro- 
 per share of the joint debts, — and 
 the effects he has to pay withal are 
 his separate estate, and his share 
 of the joint estate ; — every joint 
 creditor ought, therefore, to be al-
 
 650 
 
 OF PARTNERS. 
 
 [Ch. 15. 
 
 Proof by 
 JOINT cre- 
 ditors. 
 
 When 
 joint pro- 
 perty is 
 received 
 after proof 
 against 
 separate 
 estate. 
 Where 
 there is a 
 solvent 
 partner. 
 
 Where, under special circumstances, an order is ob- 
 tained by the joint creditors to prove against separate 
 estates — and they prove against one or more of them ex- 
 clusively of the rest — if any joint property is afterwards 
 realized, the estates so burdened by the proof arc entitled 
 to be reimbursed out of such joint property, to the extent 
 of the pi'oofs made against them, before such joint property 
 is divisible between the separate estates. (1) 
 
 If there is a solvent 'partner^ though there may be no 
 joint property, the joint creditor is in this case not permitted 
 to prove under a separate commission against the bankrupt 
 partner, on the ground that this would materially affect 
 the interests of the separate creditors. (2) For, as Lord 
 Loughborough observed, if after so proving his debt, a 
 joint creditor was to receive a dividend of IO5. in the 
 pound, the assignees of the bankrupt partner would have 
 no claim against the solvent one ; as the solvent partner 
 would in that case be entitled to set-off, as against them, 
 the other moiety of the debt, which he himself might have 
 paid to the creditor. But, in case the creditor first sues 
 the solvent partner, and recovers the whole debt against 
 him, the latter could then come in as a separate creditor 
 
 lowed to prove a just portion of 
 his debt under each partner's estate, 
 and take a dividend with the sepa- 
 rate creditors from the aggregate 
 of the separate estate, and the 
 share of the joint. But since every 
 partner must not only pay his own 
 share, but is a surety for the other 
 partners — accordingly, if there is a 
 surplus in any instance of this ag- 
 gregate fund, then, that the surplus 
 ought to be applied to the benefit 
 of the joint creditors, to make up 
 the deficiency which they may ex- 
 perience by the dividends of the 
 other partners. Whatever system, 
 however, of proof or distribution 
 might be adopted, it is submitted, 
 that the Lord Chancellor possesses 
 an equitable jurisdiction in Bank- 
 
 ruptcy quite sufficient to enable 
 him to depart occasionally from 
 any general rule, convenient as it 
 may be in ordinary practice, when 
 too rigorous an observance of it 
 would work manifest absurdity and 
 injustice. And as several exceptions 
 and departures from the above rule 
 have been already admitted to pre- 
 vail, (only one of which, it may be 
 remarked in passing, is noticed in 
 the 62d section of the new act,) a 
 still further relaxation of it on the 
 principle acted on by LordThurlow, 
 might, it is apprehended, be attend- 
 ed with considerable advantage. 
 
 (1) Ex parte Willock, 2 Kose, 
 .392. 
 
 (2) Ex parte Kensington, 14Ves. 
 447. Ex parte Kendall, ibid. 449.
 
 Sect. 4.] OF PARTNERS. 651 
 
 of the bankrupt, to the amount only of a moiety of the Proof by 
 
 debt — for he could have recovered only a moiety of the ^•^^^_j 
 
 debt agahist his co-partner if he had continued solvent ; — 
 
 a circumstance which, it will be readily perceived, occasions 
 
 a great difference in the fund divisible amongst the separate 
 
 creditors. (1) 
 
 Where, however, the solvent partner is abroad and not Where 
 
 likely to return, and there is no joint property — a ioint ere- solvent 
 V . , -HI -1 1 partner 
 
 ditor, m such a case, will be permitted to prove under a abroad, or 
 
 separate commission for the purpose of receiving divi- where 
 
 noiiG (it 
 dends (2) ; and where there is no solvent partner at the time the time of 
 
 when the joint creditor applies to prove, such proof will be ?^''o</- 
 
 also admitted, notwithstanding there was a solvent partner 
 
 at the time of issuing the commission. (3) But it has been Insolvency 
 
 determined, that the mere i^isolvenaj of the co-partner does "^ ^^* 
 
 ' , . . ^ ^ not war- 
 
 not entitle the joint creditor to prove upon the separate rant proof 
 
 estate of the other partner; the principle being that, whilst ^gj^Jnstthe 
 
 there is any other fund (however small) to resort to, the partner. 
 
 joint creditor cannot prove against the separate estate of 
 
 the bankrupt partner ; and there being no reason, as was 
 
 suggested in this case, because a man is insolvent, that 
 
 he may not still be able to pay a considerable portion of 
 
 his debts. (4) 
 
 Where several firms are engaged in a joint adventure. Where a 
 
 to which there is no joint property appertaining, the ere- •'°"^'' 
 
 ditors of the adventure must prove against the separate without- 
 
 estates of the different individuals, and not against the JO"^*^ Pi"o- 
 
 estates of the different firms. (5) 
 
 (1) Ex parte Elton, 5 Ves.240. " not be reconciled with any prin- 
 
 Sir Wm. Evans points out the " ciple of reason or justice." See 
 
 injustice of this rule, as it affects Evans's Bankrupt Statutes, 215. 
 
 the solvent partner. " The sub- (2) Ex parte P'mkerton, 6 Ves. 
 
 " jecting," he says, " one partner 814.; and see Ex parte Machell, 
 
 " to a loss, for which he is not 2V. &B. 216. 
 
 " originally liable, merely for the (.3) Ex \i2LVte Jones, 1 Mont. Dig. 
 
 " sake of giving the creditors of 238. 
 
 " the other the distribution of a (4) Ex parte Jiin^on, 5 Mad. 229, 
 
 " greater property than actually Buck, 227. 
 
 " belongs to tlie person, to whose (5) Ex parte Wzflie, 2Rosc,3!)5. 
 " rights they have succeeded, can-
 
 652 
 
 OF PARTNERS. 
 
 [Ch. 15. 
 
 Proof by 
 JOINT cre- 
 ditors. 
 
 As to or- 
 der for 
 distinct 
 accounts. 
 
 Wliere 
 joint pro- 
 perty 
 taken un- 
 der sepa- 
 rate com- 
 mission. 
 
 Where 
 joint cre- 
 ditor has 
 the privi- 
 lege of 
 election as 
 to proof. 
 
 Upon the issuing of a separate commission against one 
 of several partners — as it frequently happens that the as- 
 signees possess themselves of the partnership property, the 
 Lord Chancellor will (upon the petition of the joint cre- 
 ditors) after the choice of assignees, order distinct accounts 
 to be kept of the joint and separate estates ; and that what 
 shall be found to belong to the bankrupt in respect of his 
 share and proportion of the ■partnership estate, shall be 
 applied by the assignees in the first place towards satis- 
 faction of the partnership creditors ; and that what shall 
 belong to the separate estate of the bankrupt shall be ap- 
 plied, in like manner, in the first place towards satisfaction 
 of the separate creditors. ( 1 ) 
 
 Where partnership property, also, was supposed to have 
 been taken under the separate commission, joint creditors 
 were then allowed to come in ; and, in two modern instances, 
 they were permitted to vote in the choice of assignees. (2) 
 
 A joint creditor (who is the petitioning creditor under a 
 separate commission) has the privilege of election, either to 
 make his proof against the separate, or the joint, estate. (3) 
 On the other hand, by suing out a joint commissioji, he 
 binds himself to resort to the joint property. But where 
 a joint creditor sued out two separate commissions against 
 two partners — and proved under one against the joint estate, 
 and received a dividend — he was held not to have concluded 
 himself to prove as a joint creditor against the other partner; 
 but that, on refunding the dividend with interest, he might 
 still prove as a separate creditor under the commission 
 against such other partner. (4) Where, however, a joint 
 
 (1) Ex parte Asjnnwcll, 1 C. B. 
 L. 247. Ex parte Mercy, ibid. Ex 
 parte Hill, ibid. Ex parte Tho- 
 mas, ibid. Formerly the applica- 
 tion must have been made by bill, 
 unless the petition was consented 
 to. Ex parte Voguel, 1 Atk. 132. 
 Haiikey v. Garratt, 3 Bro. 457. 
 1 C. B. L. 244. 247. 
 
 (2) Ex parte Jones, 18 Ves, 285. 
 Ex parte Taylor, ibid. 284. 
 
 (3) Ex parte Hall, 9 Ves. 349. 
 Ex parte Ac/cerrnan, 14 Ves. 604. 
 Ex parte De Tastet, 1 Rose, 10. 
 17 Ves. 247. 
 
 (4) Ex parte Bolton, 2 Rose, 389. 
 1 Buck, 7. Ex parte Crisp, 1 Atk. 
 134. ; and see Heatli v. Hall, 
 4 Taunt. 326. Young v. Hunter, 
 16 East, 252.
 
 Sect. 4.] OF PARTNERS. 65S 
 
 creditor sues out a commission against A. "as surviving Proof by 
 
 partner of B.," he can then only prove against the joint (Utors. 
 
 estate.(l) And a joint creditor, having joint property of 
 
 two bankrupts in pledge and selling the same after their 
 
 bankruptcy, may nevertheless prove the remainder of his 
 
 debt against the separate estates of both the bankrupts, if 
 
 there is no other joint property. (2) 
 
 Where there are no separate debts, or where the joint When 
 
 creditors will consent to pay all the separate creditors 205. ijiiors'^mav 
 
 in the pound, they will then be admitted to prove their prove un- 
 
 debts under a separate commission for the purpose of re- I ^ ^^P^" 
 . . . . ^ r r rate com- 
 
 ceiving dividends. (3) But a mere offer to pay the separate mission, 
 debts will not be sufficient, without some proof before the 
 court (4) as to their amount. 
 
 If a trustee will suffer his co-trustee to detain a sum of As to 
 money belonging to the trust estate, they are both severally P^°? 
 liable; and if both become bankrupt, the debt may be trustees. 
 proved against each (5) of the estates. 
 
 Though a partner withdraws the monies of the partner- Where 
 
 ship for his separate use, yet if he openly and duly enters *^"^ P^'if" 
 
 the sum so withdrawn in the partnership books, this is not draws 
 
 such a fraud as will entitle the ioint creditors to prove P^J^ner- 
 
 agamst his separate estate ; otherwise, ir by the entries of nies for his 
 
 the books he disijuises the transaction, or wholly omits, or P^^^te 
 
 , . , , ° J > use. 
 
 conceals it. (6) 
 
 Judgment of outlawry against two of three joint debtors Judgment 
 does not make the debt a separate one, as against the ^y ao-ainst' 
 
 third debtor; and it cannot be proved (7) under his sepa- some of 
 
 . • • the part- 
 
 rate commission. ^^^^ 
 
 (1) Ex parte Earned, 1 G. & J. (4) Ex parte Taitt, 16 Ves. 193. 
 369. (5) Keble v. Thompson, 3 Bro. 
 
 (2) Ex parte Geller, 2 Mad. 262. ill. 
 
 (3) Ex parte Chandler, 9 Ves. 35. (6) Ex parte Smith, 1 G. & J. 74. 
 Ex parte Hubbard, 13 Ves. 424. Ex (7) Ex parte Dunlop, Buck, 253. 
 parte More and Ex parte Thomas, 
 
 cit. ibid.
 
 654 OF PARTNERS. [Cll. 15. 
 
 Section V. 
 
 Of Proof by separate Creditors wider a joint 
 Commission. 
 
 The separate creditors under a joint commission are not 
 permitted to come in directly w^on the joint estate; they 
 may, however, prove for tlie purpose of assenting to or 
 dissenting from the certificate, but have no right to receive 
 dividends of the joint property until all the joint creditors 
 Limited have received 205. in the pound. The rights of the sepa- 
 right ot j,g|.g creditors are (like those of the ioint creditors which 
 we have considered m the preceding section) more parti- 
 cularly defined by the general order of Lord Lough- 
 borough (1) before referred to; by which it is directed, 
 that in a joint commission against two or more bankrupts 
 the commissioners may admit the proof (2) of any separate 
 debts of any one or more of such bankrupts, and such 
 separate creditors shall be at liberty to assent to or dissent 
 from the allowance of the ce^'tificate of the bankrupt, of 
 Accounts whom they shall be separate creditors. Distinct accounts 
 to be taken ^^e also ordered to be kept of the separate estates, as 
 different well as of the joint estate; and what shall be found to 
 estates. belong to the separate estates is to be applied in the first 
 place towards satisfaction of the debts of the respective 
 Overplus separate creditors. And in case there shall be any over- 
 
 of joint plus of the ioint estate after all the ioint creditors shall be 
 
 estate to . 
 
 go to the P^^d ^^^ satisfied their whole demands, the respective 
 
 separate shares of the bankrupts in such overplus are to be carried 
 
 to the account of their respective separate estates, and be 
 
 applied towards satisfaction of their respective separate 
 
 debts. This arrangement w^as formerly made upon peti- 
 
 (1) 8th March, 1794. under the joint commission, they 
 
 (2) The practice was formerly paying contribution to the charge 
 to let in the separate creditors, of it. 1 C. B. L. 232. 
 
 upon petition, to prove their debts
 
 Sect. 5.] OF PARTNERS. 655 
 
 tion in each particular case; but it is now, in pursuance of Proof by 
 
 this order, done by the commissioners. The costs of creditors. 
 
 taking the accounts are directed to be paid out of the 
 
 separate estates, and to be settled by the commissioners in 
 
 case the parties differ about them. 
 
 Under this order, where a firm of four persons became Proof may 
 
 bankrupt, three of whom carried on a distinct business ^^ "'^"^ 
 ^ ' ^ without a 
 
 under a different firm, the creditors of the latter firm were special 
 held entitled to prove against the distinct estate of the °''"^''- 
 three, without any special order; such a case being 
 within the meaning, though not the words, of the general 
 order. (1) 
 
 Where two partners agreed to borrow a sum of money Securities 
 for the use of the partnership, but one of them only gave oJe paj.^. 
 a bond for securing the payment — which was, however, ner, for 
 witnessed by the other partner — and the money was after- "|^"fj ^^' 
 wards entered in the cash-book of the partnership, — Lord partner- 
 King, upon petition, directed the obligee in the bond to be f P"^" 
 admitted a creditor against the joint estate. (2) So, where 
 a creditor lent money to two of the members of a partner- 
 ship upon the joint notes of the two partners, and upon 
 their separate bonds, — and the whole of the money was 
 applied to the use of the partnership (which consisted of 
 them and several others) and the partners all agreed to con- 
 solidate the separate debts, and to consider them as the 
 debts of the entire partnership, — Lord Thurlow, upon 
 petition, permitted the creditor to prove the whole amount 
 against the joint estate of the partnership. (3) But where 
 a sole trader became indebted by bond, and then took in a 
 nominal partner, and some time afterwards a joint com- 
 mission was issued, — the separate creditor in this case 
 was not permitted to prove against the joint estate. If, What is an 
 however, any interest had been paid upon the bond by adoption 
 both partners, they would then have been considered to rate debt 
 
 have adopted the debt, and the partnership would have ^y *'^^ 
 ^ '41 partner- 
 
 (l) Ex parte Worthington,5MRd. (2) Ex parte Bnnvii, 1 Atk. 225. ^ '^* 
 26. {5) Ex parte C/owex, 2 Bro, 595.
 
 656 
 
 OF PARTNERS. 
 
 [Ch. IJ 
 
 Proof by 
 
 SEPARATE 
 
 creditors. 
 
 As to trust 
 money ap- 
 plied by 
 one part- 
 ner to 
 partner- 
 ship pur- 
 poses. 
 
 been liable to it. (1) But where A., being indebted to 
 several persons, entered into partnership with B., and 
 brought his stock in trade into the partnership — and by the 
 articles between them it was agreed that the joint trade 
 should pay the creditors of A. named in a schedule, — Lord 
 Eldon held, that a separate creditor of A. (though named 
 in the schedule) did not, in the absence of all evidence of 
 any assent on his part to such agreement, become a joint 
 creditor of A. and B., and could not, therefore, prove 
 against their joint estate. (2) 
 
 If one partner (being a trustee) brings trust money into 
 the trade unthout the Jawwledge of his co-partner, it can- 
 not be proved as a joint debt ; for, though the partner 
 abuses his trust by advancing the money to the partner- 
 ship, it will not raise a contract between the partnership 
 and the cestui que trust. (3) Neither can money borrowed 
 by one partner to pay for an estate, but applied by him to 
 pay partnership debts, be proved by the lender against the 
 joint estate. (4) But where one of two partners applied 
 trust money for the purposes of the trade, mth the privity 
 of the other partner, both in that case were held liable to 
 make good the trust money ; and though they afterwards 
 dissolved their partnership, and the partnership effects 
 were assigned over to the first, who took on him the pay- 
 ment of the debts, this was held to be no discharge of the 
 other partner. (5) So, where one of three partners died 
 intestate, leaving a widow and infant children — and his 
 widow administered, and agreed with the surviving part- 
 ners that her late husband's share of the partnership pro- 
 perty should continue in the firm (of which she constituted 
 one with them) for a term of years, and the firm became 
 bankrupt, — Lord Eldon held, that though the admi- 
 nistratrix committed a breach of trust by continuing the 
 
 (1) Ex parte Jackson, 1 Ves. jun. (4) Ex parte Wheatley, 1 C.B.L. 
 131. 537. 
 
 (2) Exparte^riZ/iflfre*, lBuck,l,3. (5) Smith v. Jameson, 5 T. R. 
 
 (3) Ex parte Apsey, 5 Bro. 265. 601. ; and see ante, G44.
 
 Sect. 6.] OF PARTNERS. 657 
 
 money in the trade, yet as the partners hicw that a certain Proof by 
 proportion of the property belonged to the children, they creditors. 
 
 held the money as debtors to the children, and as if it had 
 
 been placed with them by way of direct loan ; and that 
 though the children might have proved against the sepa- 
 rate estate of their mother (if it had been for their benefit 
 to do so), they might equally prove against the partners, 
 who had possessed themselves of the property of the infants 
 under circumstances raising a clear assumpsit. ( 1 ) And 
 indeed generally, when any partner (being a trustee of 
 funds) makes use of them for partnership purposes with 
 the kno'-dcledge of the other partners, the cestui que trusts 
 may prove against the joint estate. (2) 
 
 Where a broker insured with an luiderwriter, who Where 
 underwrote separately but had partners — and the broker J.°"^^ ^°^' 
 kept an account with the partnership, — the Court held, hibited by 
 
 that the proof could not be made against the joint estate '^^' pi'oof 
 / • -1 ^ 1 • 1 • 1 1 -1 • 1 1 , cannot be 
 
 (an msurance with a partnership being then prohibited by the made 
 
 6 G.l. c. 18. (3) ) ; but the debt was ordered to be proved against the 
 
 against the separate estate. (4) estate. 
 
 Section VL 
 
 Of Proof hi) Creditors holding joint and several Securities ; 
 and herein of the Creditor's Election to prove agai?ist 
 the Joint or separate Estates. 
 
 A creditor, who has a joint and several security, may Joint and 
 
 come in either against the joi?it, or the separate, estates ; ^^^^ral 
 
 but he must make his election, for he cannot prove must elect 
 
 against both estates at the same time. And this accords against 
 . . which 
 
 with the well known rule of law as to the right of action estate he 
 
 will prove 
 
 (1) Ex parte Watson, 2 Ves. & lately repealed by the 5 G. 4. 
 B. 414. c. 114. 
 
 (2) Ex parte i/ea/oH, Buck, 386. (4) Ex [tarte Angerstei7i, 1 Bro. 
 (■5) This restriction has been 399. Ex parte Lee, ibid. 400. 
 
 u u
 
 658 
 
 OF PARTNERS. 
 
 [Ch. 15. 
 
 Election 
 of proof. 
 
 Where a 
 creditor 
 has no 
 notice of a 
 dormant 
 partner. 
 Bond by 
 mistake 
 not made 
 joint and 
 several. 
 
 When the 
 election 
 must be 
 made. 
 
 of a joint and several creditor ; viz. where several obligors 
 are jointly and severally bound, the obligee must either 
 sue them ail jointly, or each of them separately, — but he 
 is not allowed to do both. (1) Where also the creditor has 
 no notice that the bankrupt has a dormant partner, he may 
 (as we have before seen (2)) make his election to come in, 
 either as a joint or separate creditor. (3) So, where a 
 creditor had a ^0/72/ bo?id of two partners, which by mistake 
 was omitted to be made Joint and several, and there ap- 
 peared to have been a clear intention of the parties that 
 the liability should be several, as well as joint, — the cre- 
 ditor (under a joint commission issued against the parties) 
 was permitted to prove the bond against the separate estate 
 of either partner. (4) But, notwithstanding a creditor is 
 thus put to his election — yet, after having done so, if the 
 other estate should leave a surplus beyond the payment of 
 its own debts he may then come in for a share of such 
 surplus in right of such part of his debt as remains un- 
 satisfied (5); though, after electing to go against the Joint 
 estate, he has no claim of preference to the other joint 
 creditors upon the surplus of the separate estate. (6) 
 
 The creditor, before he elects, is entitled to a reasonable 
 time (7) to examine into the accounts of the two estates. He 
 also has, under particular circumstances, been permitted 
 to prove against both estates, and defer his election till 
 a dividend is declared (8); and even where he has received 
 a dividend upon one estate, he has been allowed to change 
 his proof upon refunding the dividend received. (9) But, 
 
 (1) iSaund, 15.5. n.l. ibid. 291 e. 
 Bac. Ab. Obligation, D. 4. Poph. 
 161. 2 Burr. 1290. 2Vin. Ab. 68. 
 pi. 7. 
 
 (2) Ante, 645. 
 
 (3) Ex parte Hodgkinson, 1 9 Ves. 
 294. 
 
 (4) In re Bate, 3 Ves. 400. In 
 re Freeman, ibid. 401. note. 
 
 (5) Ex parte Roivlandso7i, 3 P. 
 Wms. 405. Ex parte Pa^-menter, 
 cit. 1 Atk. 99. Ex parte Banks, 
 
 1 Atk. 106. Ex parte Bond, ibid. 
 98. Ex parte Blankenhagen, 1 C. 
 B. L. 249. Ex parte Hay, 15 Ves. 
 4. Ex parte Masson, 1 Rose, 1 59. 
 
 (6) Ex parte Bevan, 10 Ves. 107. 
 
 (7) Ex parte Butliriy 1 C. B. L. 
 250. 
 
 (8) 1 C. B. L. 250. 
 
 (9) Ex parte Rowlandson, 3 P. 
 Wms. 409. Ex parte Bond, 1 Atk. 
 98. Ex parte Bentley, 2 Cox, 218. 
 Ex parte Bolton, 2 Rose, 389.
 
 Sect. 6.] OF PARTNEn.s. G,59 
 
 In one case the late Vice-Chancellor held, that the creditor Election 
 was bound to make his election before a dividend is de- ' ^ P^'Q'^f- 
 clared of the estate against which he has already proved (1) ; 
 but Lord Eldon, upon appeal, decided the contrary. (2) 
 Though if a dividend has been made upon the other estate 
 against v>'hich he seeks to prove, the Court will not permit 
 that dividend to be disturbed by reason of such change of 
 proof. (3) 
 
 But, if the creditor has done any act in the character in When ere 
 which he has already proved, he will in general be con- S'*T j*!"" 
 sidered to have made a conclusive election. As, where he proof al- 
 had signed the certificate as a joint creditor, he was holden '"^^^^ 
 not entitled afterwards to alter his proof (4-) ; and so, where 
 he was o. partij to a petition in the character of a joint cre- 
 ditor, the late Vice-Chancellor appeared to think, that that 
 was an objection to the transfer of proof. (5) Lord Eldon, 
 however, held, upon appeal, that he was not concluded by 
 this circumstance. (6) And where a debt was due to 
 bankers on the balance of account, and part was covered 
 by the joint promissory notes of the bankrupts, and the 
 whole by a mortgage of some property belonging to one 
 of the bankrupts, with joint and several covenants from each 
 of them for payment of the whole balance, and part of the 
 debt had been proved by the bankers against the joint 
 estate, — it was held, that they were entitled to prove a 
 portion of the residue against the separate estate of one of 
 the bankrupts. (7) But where a joint and several creditor 
 proved his debt under a separate commission against one 
 of two partners, and received a dividend, and also signed 
 his certificate — and afterwards brought a joint action 
 against the solvent partner and the bankrupt — Lord 
 Eldon held that the creditor, having made his election 
 
 (1) Ex parte Husband, 5 Mad. (4) Ex parte Amo^i;, 1 Mont. Dig. 
 421. 244. 
 
 (2) Ex parte Husband, 2 G. & (5) Ex parte Husband, supra. 
 J. 4. (6) 2 G. &J. 4. 
 
 (.3) Ex parte B'ldley, IsVes. 70, (7) Ex parte Ladbroke, 2G. & 
 
 J. 81. 
 
 VOL. I. * U U 2
 
 660 
 
 OF PARTNERS. 
 
 [Cb. 15. 
 
 Election 
 of proof. 
 
 Excep- 
 tions to 
 the ge- 
 neral rule 
 of election. 
 
 Where 
 parties on 
 a bill are 
 separate 
 firms com- 
 posing one 
 general 
 partner- 
 ship. 
 
 to proceed severally by proving the bond under the com- 
 mission against the bankrupt, was not at liberty to bring a 
 joint action upon it, but that he must proceed against the 
 solvent partner separately. (1) Where, however, a joint 
 creditor had sued out two separate commissions, under one 
 of which he pi'oved against the joint estate and received a 
 dividend, being ignorant of his right to prove against the 
 separate estate of the other, — he was held not to have 
 conclusively elected to prove as a joint creditor ; but 
 that, upon refunding the dividend v/ith interest, he might 
 prove (2) as a separate creditor. And a joint and several 
 creditor by bond, who proves against the separate estate 
 of one of the obligors, is not concluded by taking after- 
 wards an additional joint security from all the obligors, but 
 is still entitled to elect. (3) 
 
 There are some exceptions, however, to this rule of 
 election so imposed on a creditor holding a joint and 
 several security; which, indeed, are more particularly 
 applicable to the holders of bills of exchange, and will 
 require some attention to be properly understood. 
 
 First, Where there are distinct Jirms, and the holder is 
 igjiorant at the time he takes the bill, that they are all 
 engaged in one general partnership : in this case, if any one 
 firm draws upon another — whether the aggregate firm 
 upon the minor firm, or vice versa — the holder, it has been 
 settled, may prove against both estates, namely, the estate 
 of the general partnership, as well as that of the minor 
 firm (4), or the separately trading individual. And it has 
 also been subsequently decided, that though the holder had 
 notice of the joint interest of two different firms on a bill, 
 who were engaged in a joint adventure, yet that he was en- 
 titled to prove the bill against both estates. (5) 
 
 (1) Bradley v. Millar, 1 Rose, 
 273. 
 
 (2) Ex parte Bolton, 2 Rose, 389. 
 Ex parte Swanzy, Buck, 7. 
 
 (5) Ex parte Hay, 15 Ves. 4. 
 (4) Ex parte La Forest, 1 C. B. L. 
 1251. Ex parte -&'o?;/;ow?<.5, ibid. Ex 
 
 parte Benson, ibid. Ex parte Adam, 
 2 Rose, 56. 
 
 (5) Ex parte Walker. Ex parte 
 Wenslay, 1 Rose, 441.; and see 
 Lord Eldon's observation, 8 Ves. 
 546.
 
 Sect. 6.] OF PARTNERS. 661 
 
 Secondly^ Where the parties on the bill are not distinct Election 
 
 Jlrms — that is to say, where no member of a partnership "/P^- 
 
 carries on trade on his separate account — and one of the Where 
 
 partners draws upon the general firm, or the general firm ^'"^^^^ ''"'^ 
 
 upon the individual partner: — in this case, if the holder of tinct firms, 
 
 the bill, at the time he took it, liad notice that the different l'"^.^"')' , 
 
 , , . individual 
 
 parties on it were included in one general partnership, partners of 
 
 (notwithstanding he procures the separate indorsement of one gene- 
 one of the partners on the bill, for the express purpose of n^rfhipf 
 raising a contract for a double security) he cannot prove 
 against both the joint and the separate estates, but is put 
 to his election (1); because, as Lord Eldon has justly ob- 
 served, where the object appears to be to give the bill a 
 character of respectability by this distribution of the names 
 of a partnership, a party to such an arrangement ought not 
 to avail himself of it, against his hiowledge of the method, 
 in which the obligation of the firm ought regulai'ly (2) to 
 be created. If the holder is in perfect ignorance of the Distinc- 
 identity of the parties, and bond fide conceives them to be *'?".?^ *^ 
 distinct houses of trade at the time he takes the bill, then the holder 
 
 it would seem consistent with the principle of the above 'V^^^ *"^*' 
 
 , fact or not. 
 
 decisions, that he should be allowed to prove against both 
 
 estates. But in a late case, where A. and B. were in 
 
 partnership, B. being a secret partner, and A. on the 
 
 partnership account drew bills in his own name on B., — 
 
 Lord Eldon held, that the holder of these bills (though he 
 
 was ignorant of the partnership) was not entitled to prove 
 
 them against the joint estate, and also against the separate 
 
 estate of B. ; but that he was only entitled to prove them 
 
 against each of the separate estates. (3) 
 
 In some cases, where the creditor has a right of proof Where 
 
 originally against both estates, he may forfeit such rifjht by "» ^^ 
 o */ c5 J J o «/ prove 
 
 his own laches, or by his own deliberate election to come against 
 
 only against one. In one case where, after proving against bothe^tsXes. 
 •' *' > f o {3 IS forfeited. 
 
 (l) Ex parte 5/gg, 2 Rose, 57. (2) 2 Rose, 38. 
 'E'x.^^xtc. Bank of England, 2B,osc, (.3) Ex parte Husbands, 2 G. iSr 
 82. J. 4. 
 
 VOL. 1. * D U 3
 
 G62 
 
 OV PARTNERS. 
 
 [Ch. 15. 
 
 Klcction 
 of proof. 
 
 By laches. 
 B)' a deli- 
 berate 
 election. 
 
 Where 
 joint cre- 
 ditors, 
 upon a dis- 
 solution of 
 partner- 
 ship, have 
 no election 
 against the 
 separate 
 estate. 
 
 the joint estate, tlie creditor laid by for some time without 
 proving against the separate one, and acted as a joint cre- 
 ditor by joining in a petition with other joint creditors (1), 
 the late Vice-Cliancellor thought that he was concluded ; but 
 Lord Eldon, upon appeal, held the contrary. (2) But where 
 A. held a bill drawn by C. and Co. upon B. (who was a 
 member of that firm, as well as a third person who was an 
 infant) — but A. was ignorant of these circumstances, — 
 and separate commissions being taken out against B. and C. 
 (the infancy of the other partner excluding a joint com- 
 mission) — an order was made under each commission for 
 keeping distinct accounts of the joint and separate estates, 
 and A. proved his debt against the joint estate under each 
 commission, and received dividends under each ; — it was 
 held, that as A. had modelled his proof, not as against the 
 liability of the parties arising from the contract on the bill, 
 but upon his right to include or exclude the resort to a 
 dormant partner, he had made a deliberate and conchtsive 
 election to resort to the joint funds alone; and could not, 
 in addition to the two proofs he had already made, prove 
 also against the separate estate of B. (3) 
 
 Where two partners dissolved their partnership, one 
 continuing the business and covenanting to pay the joint 
 debts — and afterwards a joint commission issued against 
 them ; — the joint creditors, who had not (previous to the 
 bankruptcy) accepted the continuing partner as their sole 
 debtor, were held not to have an election to prove against 
 the separate estate of the continuing partner, but to have 
 only a right to prove against the joint estate ; notwithstand- 
 ing what was the joint stock of the two, under the circum- 
 
 (l) Ex parte Husband, 5 Mad. 
 421. From the marginal abstract 
 of this case, it would seem as if all 
 that it decided was, that the cre- 
 ditor had simply a right of elec- 
 tion ; but the report of it expressly 
 states, that there were two dislinct 
 firmSy and that the creditor was 
 ignorant of the general partner- 
 ship. 
 
 (2) Ex parte Husbands, 2 G. & 
 J. 4. 
 
 (3) Ex parte Liddel, 2 Rose, 54. 
 For a very able and accurate ex- 
 amination of the cases relating to 
 the doctrine of election, see Mr. 
 Eden's Treatise on the Bankrupt 
 Law, page 1 70. et seq.
 
 Sect. 6.] OF PARTNERS. 663 
 
 stances of the case, became the separate estate of the Election 
 
 continuing partner. (1) y proof. 
 
 Where A. sold goods to B., and other goods to C, and Joint 
 
 B. and C. joined in a note for the whole, A. was allowed "takers of 
 
 . , n 1 . . " promis- 
 
 to prove against the separate estate oi each, on giving up sory note. 
 
 the joint note. (2) 
 
 T. (who was in partnership with M. and F., and also Where 
 carried on a separate trade) being indebted to K. 100/. *^¥ ^l^^'^ 
 on his separate account, sent him a bill of exchange for though ' 
 300/., that wanted two months of becoming due, indorsed S*^^" ^V 
 by T. M. and F. (but not by T. in his individual cha- ner for his 
 racter), and requested K. to give him credit for the 100/., separate 
 and to send him a bill for the remainder of the 300/. — no election 
 K. accordingly gave him credit for the 100/., and sent him against his 
 a banker's check for 200/., which was duly paid — the bill gsut?^^ 
 for 300/. was dishonoured, and T. M. and F. became 
 bankrupts : — under these circumstances, Lord Eldon held 
 that the transaction must be considered as an exchange of 
 paper ; and that K. had no right of election in his proof 
 upon the bill, nor any right to prove for any part of the 
 300/. against the separate estate of T. (3) 
 
 Where a joint and separate creditor sues out a separate A joint .^, 
 
 commission against one partner, and afterwards another '^'^ ^^?% 
 
 creditor sues out a joint commission, the first commission tor, who 
 
 will not be superseded in favour of the last, without ^"'^s out a 
 
 11 ' • 1 r 1 • • 1 IT separate 
 
 securing all the rights oi the joint and several creditor to commis- 
 
 prove under the joint commission, and elect between the pon, which 
 • • 1 1 1 -11 1 11 1 1 ^s super- 
 
 joint and separate estates ; and he will be allowed also seded in 
 
 to elect, out of which estate he will be paid the costs of f^iyourof a 
 
 superseding the first commission. (4) not j^."^' 
 
 E rived of 
 ^-^ J, , , -.. ^„^ „. J, ,j, , is elec- 
 
 Ex parte Frt/, l G. & J. 96. ; and (4) Ex parte Brown. Ex parte tion. 
 see Ex parte Fell, 10 Ves.S47. Ex Munton, 1 V.&B.60. 1 Rose, 443. 
 parte Williams, ante, 566. Ex parte Smith, 1 G. & J. 256. 
 
 (2) Ex parte Lobb, C. B. L. 250. 
 
 u u 4
 
 664 
 
 or PARTNERS. 
 
 [Ch. IT;. 
 
 A solvent 
 partner 
 cannot 
 prove 
 against his 
 co-part- 
 ner, in 
 competi- 
 tion with 
 thegeneral 
 creditors. 
 
 The same 
 rule be- 
 tween the 
 different 
 estates 
 when all 
 the part- 
 ners bank- 
 rupt. 
 
 Section VII. 
 
 0/ Proof between Partners^ aiid different Firms composing 
 one general Partnership. 
 
 Although one partner may be a creditor of another, and 
 may (under certain circumstances) enforce his claim against 
 him both at law and in equity notwithstanding the partner- 
 ship, yet in Bankruptcy it is now a settled rule, that a solvent 
 partner cannot prove under a commission against his co- 
 partner, so as to come in competition with the creditors of 
 the partnership ( 1 ) — that is, that he has no right to receive 
 any portion of his debt, until all the creditors of the part- 
 nership are paid 205. in the pound, as well as all interest 
 due upon their respective debts subsequent to the date of 
 the commission. (2) The above rule is founded on this 
 plain principle of reason and justice, viz. that a partner, 
 who is himself liable to all the creditors of the partnership, 
 ought not to take any of the funds, before all the creditors 
 (to whom he is so liable) are duly paid. (3) 
 
 And where all the partners become bankrupt, the same 
 rule is adopted as to the proof between the different estates, 
 though it is in this case frequently more difficult of appli- 
 cation, and does not seem to be altogether founded upon 
 quite so sound a principle. It appears, however, to be 
 established by the modern decisions, that not only is the 
 
 (1) Ex parte Burrel, C. B. L. 
 532. Ex parte Parher, ibid. Ex 
 parte Fine, ibid. Ex parte Broome, 
 1 Rose, 69. 
 
 (2) Ex parte Reeve, 9 Ves. 588. 
 (5) Though the partner cannot 
 
 prove for the purpose of receiving 
 dividends, he is, however, at liberty 
 to enter a claim for the amount of 
 his demand. Ex parte Broome, 
 I Rose, 69. And it seems to be 
 a question undetermined, whether, 
 he lias not strictly u right to prove, 
 
 with a reservation of his right to 
 receive dividends until the taking of 
 the partnership accounts — though 
 the practice of the commissioners 
 is not to permit such proof The 
 arguments in favour of the proof 
 are, 1st. That the demand of the 
 partner is an equitable debt ; 2dly. 
 That it is a debt within the 52d 
 section of the new act; and, ."Jdiy. 
 That the partner would be barred 
 by the certificate of his copartner. 
 And see 1 Mont. Dig. 245.
 
 Sect. 7.] OF PARTNERS. 665 
 
 separate estate of one partner prevented from claiming Proof 
 against the joint estate of the partnership in competition *^'''<'t'^«- 
 with the joint creditors ( 1 ), but that the joint estate, also, 
 is not permitted to claim against the separate estate in com- 
 petition with the separate creditors. (2) 
 
 The only exceptions to this general rule seem to be, Excep- 
 ^i'stf where money or effects have been fraudulently ah- |!°"^, ^? 
 stracted from one estate and applied for the benefit of the 
 other (3) ; and, secondly^ where some of the members of 
 a partnership form an entirely distinct firm, carrying on a 
 different trade from that of the general partnership, and 
 where the articles of one trade have been furnished by one 
 firm to the other. (4) 
 
 And^r5^, where money or effects have hQen fraudulently Money 
 abstracted from one estate to benefit the other. fraudu- 
 
 This question, it will be perceived, involves the con- stracted. 
 sideration of innumerable transactions, each depending on What is a 
 its own peculiar circumstances ; and the question will al- case of 
 ways be, whether or not, in the opinion of the Lord Chan- 
 cellor, or of a jury, the transaction will be held to amount 
 to a case of fraud. It has however been decided, that 
 where one partner takes the property of the partnership 
 fund, and applies it to his own use without the knowledge of 
 the other partners, and to the prejudice of the partnership 
 estate, this is such a case of fraud as falls within the ex- 
 ception to the rule ; and that the assignees, on behalf of the 
 joint creditors, may consequently prove the amount of the 
 sum so abstracted against the separate estate. (5) The 
 term fraud, indeed, (as Lord Eldon has observed) is used 
 
 (1) Lord Hardwicke, however, differently by Lord Talbot. Ex 
 was of opinion, that if one of two parte Blake, C.B.L. 553. Ex parte 
 bankrupt partners had lent money Batson, ibid. 534. 
 
 to the partnership, then that his (5) Ibid. Ex parte Lodge, 1 Ves. 
 
 separate creditors had a right to a jun. 166. Ex parte Ctist, C. B. L. 
 
 dividend upon this, in common 535. 
 
 with the joint creditor. Ex parte (4) Ex parte SiUitoe, 1 G. & J. 
 
 Hunter, 1 Atk.527. C. D. L. 534. 374. 
 
 (2) Ex parte Grill, C. B. L. 534. ( 5) Ex parte Cust, supra. Ex 
 This point, however, was decided parte Lodge, supra.
 
 666 OF PARTNERS. [Cll. 15. 
 
 Proof in a sense to distinguish the transaction from a taking by 
 eweeiu^ contract or loan, or from a taking with the express or im- 
 pHed authority of the other partners. (1 ) And with respect 
 to the principle of the above exception, he upon another 
 occasion remarks, that it is against conscience that the 
 creditors should resist the restoration of that, which the 
 debtor (from whom they seek payment) has against the 
 consent of his partners, and in fraud of their contract (2), 
 Rights of taken out of the joint fund. In the event, too, of a surplus 
 ^reditors ^^ ^^^ joint estate, then the separate creditors of the part- 
 ofdefraud- ner who has been defrauded will have a right to such 
 ed part- surplus, in preference to the separate creditors of the 
 partner committing the fraud. Thus, where it appeared 
 that a debt had been proved against the joint estate, in 
 respect of bills drawn by one partner in the name of the 
 firm for his own separate debt, it was determined, that his 
 share of the surplus of the joint estate was subject to the 
 lien of the separate estate of the other partner, in prefer- 
 ence to his own separate creditors ; and not only so, but 
 that if such surplus proved insufficient to satisfy the balance 
 due from the one estate to the other, then that the separate 
 creditors of such other partner might come in against the 
 separate estate of the partner (so drawing the bills) for the 
 deficiency. (3) 
 Solvency '^^^^^ solvency of either of the partners, also, will not pre- 
 
 ofapart- vent the exercise of the same right of proof, as the joint 
 not pre- creditors would have had if both had become bankrupts, 
 vent the Thus, where two solvent partners, after the bankruptcy of 
 of™roof ' their copartner, were compelled to discharge a debt against 
 the partnership (which he had created by his own fraud), 
 and had also paid all the joint debts of the partnership, 
 they were permitted to prove the amount of this debt 
 under the commission against their bankrupt partner; 
 Lord Eldon observing, that the solvent partners might 
 
 C 1 ) 2 V. & B. 2 1 .-. (5) Ex parte King, 1 7 Ves. 1 1 5. 
 
 (2) Ex parte Yoiige, 5 V. & B. 
 55.
 
 Sect. 7.] OF PARTNERS. 667 
 
 have filed a bill to compel the other to replace money so Proof 
 fraudulently obtained — that this right could not be taken ^ ^^^"^^^- 
 from them by the bankruptcy of their copartner (1) — and 
 that, in every fair and equitable understanding of the 
 respective situations of the parties, the solvent partners 
 were to be considered as the separate creditors of the bank- 
 rupt partner. And even at Law it has been held, that 
 where a solvent partner had paid money to another before 
 his bankruptcy, for the specific purpose of being paid over as 
 his liquidated share of a debt to their joint creditor — and the 
 money had been misapplied by the bankrupt partner, — the 
 solvent partner could prove the amount under the com- 
 mission. (2) So, where there happens to be a surplus 
 of the joint estate under a separate commission — if, upon 
 taking the partnership accounts, the bankrupt is found in- 
 debted to the solvent partners in respect of the transactions 
 of the partnership, the solvent partners are also entitled to 
 such surplus towards discharging such debt ; and if it turns 
 out insufficient, then they are at liberty to prove against 
 the separate estate of the bankrupt partner for the dif- 
 ference. (3) 
 
 But, notwithstanding one partner may abstract the part- Where 
 nership money without the privity or subsequent appro- onepart- 
 bation of his copartner, yet if the latter, by his own conduct, own con- 
 enables him to do so — such as by conceding to him a full ^^^^^ S^^ 
 dominion over the funds contrary to the express provision a full con- 
 of the articles of partnership — this is a case which does not ^rol over 
 come within the above exception. Thus, where the articles nersWp ' 
 of partnership between two partners provided, that the funds. 
 money belonging to the concern should be lodged in the 
 hands of a banker in thei?- joint yiarnes — and one partner 
 permitted the other to pay in the partnership monies, and 
 draw them out from time to time in his own sepaj-ate name, — 
 Lord Eldon held this to be such an acquiescence of one 
 
 (1) Ex parte Young, 2 Rose, 40. (2) Wright v. Hunter, 1 East, 20. 
 3 V. & B. 35. (3) Ex parte Terrell, Buck, 345.
 
 668 OF PARTNERS. [Ch. 15. 
 
 Proof partner in what necessarily gave the other the whole con- 
 b ekvecn. ^.^.^^ ^^^^ ^^^q joint property, that he must abide by the con- 
 sequence of his own conduct ; and, therefore, though the 
 money might have been taken by the other partner for his 
 own purposes, without the privity or subsequent appro- 
 bation of his copartner — yet the facts, by which the partner 
 was so enabled to possess himself of it, being facts within 
 the knowledge and approbation of the copartner, the con- 
 sequence of those facts must also be taken to have been 
 within his knowledge, and with his privity and appro- 
 Whatclocs bation.(l) But where one partner was entrusted and 
 
 "*'*' empowered by the other, vursuant to the articles ofpartner- 
 
 amount to ^ , • •„ i i . i? l 
 
 an acqui- ship, to draw Diils and manage the cash concerns or the 
 
 escence in copartnership ; — this was held to be not such an acqui- 
 such con- ^ .,.,.. , 1 • r 1 
 
 trol. escence in his dominion over the partnership luncls, as 
 
 would prevent the above right of proof from attaching 
 against his estate for a debt, which he had created 
 against the partnership, by pledging the credit and using 
 the notes and name of the partnership for his own pur- 
 poses, without the consent of the other partners. (2) 
 The right of proof also in this case was held by Lord 
 Eldon to be sustainable on another ground, viz. under 
 the provisions of the 49 G. 3. c. 121. s. 8., and conse- 
 quently under those also contained in the 52d section of 
 the new act. For he observed, that the solvent partners 
 having paid all the joint debts, though they were not 
 strictly sureties, were nevertheless in the situation of 
 *' persons liable" and, as such, entitled to prove against 
 the bankrupt partner. And this right of proof by a solvent 
 partner, who has paid all the partnership debts, or indem- 
 nified the bankrupt's estate against them, has also been re- 
 cognized in several other cases. (3) 
 
 (1) Ex parte Harris, 1 Rose, (3) Ex parte OgUvy, 3 V. & B. 
 437. 2 V. & B. 210. ; and see Bx 133. Wood v. Dodgson, 2 M. & S. 
 parte Smith, 6 Mad. 2. 195. Ex parte Watson, Buck, 449. 
 
 (2) Ex parte Young, 2 Rose, 40. Ex parte Taylor, 2 Rose, 175. See 
 3V.&B.35. also 9 Ves. 590. 2V.&B.212.
 
 Sect. 7.] OF PARTNEKS. 669 
 
 When joint creditors have, under an order on the Proof 
 ground of there being no joint property, proved against ^ "'^"^' 
 
 one or more of the separate estates exclusively of the rest. As to con- 
 
 the estate so burthened is entitled to remuneration from tnbution 
 
 between 
 the others. (1) And where bankrupts were bound jointly estates. 
 
 and severally to the crown, and the joint estate had paid 
 beyond its due proportion, contribution was decreed be- 
 tween the joint and separate estates. (2) 
 
 Where a solvent partner pays all the joint debts, and Where a 
 
 proves affainst the separate estates of his bankrupt co- ^'^'^^"'^ 
 i <^ r ^ ^ r partner, 
 
 partners, for the respective sums each is bound to contri- who has 
 
 bute, — it has been a question, whether, if the estate of one P/^^^ "ijl 
 
 f- 1 1 I • ■ nc ■ • ^ ■, the joint 
 
 ot the bankrupts is msumcient to pay 205. m the pound, debts, may 
 
 the solvent partner can come against the other bankrupt's pi'ove for 
 ,, , . . r 1 1 n ' 1 • 1 1 ^ share of 
 
 estate tor his proportion ot that dehciency, besides the the defici- 
 
 original contributory proportion already proved against his ^"py not 
 estate. It has been holden by the present Vice- Chancellor, another 
 that this cannot be done ; but that the solvent partner bankrupt 
 can only prove for such sum, as at the time of the bank- ^^^ ^^^' 
 riiptcy each partner was bound to pay or provide — on the 
 principle, that proof is equivalent to payment, without re- 
 gard to the amount of the dividend — and also that proof 
 cannot thus be mounted upon proof. (3) Some doubts, 
 however, have been entertained as to the correctness of 
 this decision — Lord Eldon observing, with respect to proof 
 being equivalent to payment, that that position has been 
 frequently overruled. (4) And Mr. Eden appears to think, 
 that the equitable principle applicable to cases of principal 
 and surety was not sufficiently attended to in the above 
 decision. (5) But it must be remembered, that though the 
 solvent partner is in the nature of a surety to third persons 
 for his co-partners, yet his co-partners are not respectively 
 bound for each other as sureties to him — except, indeed, for 
 
 (1) Ex parte Willock, 2 Rose, (3) Ex parte W^afjow, Buck.449. 
 392. Ex parte JVj/lie, ibid. 393. Ex parte Stnit/i, ibid. 492. 
 
 (2) Rogers v. Mackenzie, 4 Ves. (4) Ex parte Hunter, Buck. 556. 
 752. (5) Eden's B.L. 168.
 
 670 
 
 OF PARTNERS. 
 
 [Ch.li 
 
 Proof 
 between. 
 
 Where 
 some of 
 the part- 
 
 so much only as each may be bound to contribute, in 2^0- 
 portion to his o'W7i share in the partnership, for any loss oc- 
 casioned to the general concern by the default of another. 
 With this exception, each partner is only liable to the 
 others for his own acts and defaults, and not for the acts 
 and defaults of any one of his co-partners. Accordingly, 
 when there are more than two partners, then if one 
 proves entirely insolvent, his share of the debts must be 
 paid by the other partners, each bearing his due proportion 
 of the loss occasioned by the insolvency of their co-partner. 
 On the other hand, if two of three partners become bank- 
 rupt, and one of the estates of the bankrupt partners pays 
 but a small dividend on the amount of his contributory 
 share due to the solvent partner, the latter ought not to 
 prove for the whole of the deficiency against the estate of the 
 other bankrupt partner, but only for so much as that other 
 bankrupt partner would have to contribute towards making 
 good such deficiency, if he had continued solvent ; other- 
 wise, indeed, the estate of the bankrupt partner would be 
 charged with a most unreasonable burthen for the indem- 
 nity of the solvent partner. ( 1 ) 
 
 Secondly. Where some of the members of a partnership 
 form an entirely distinct firm, carrying on a different trade 
 
 (l) The proposition contended 
 for by the counsel for the petition 
 in ex parte Watson, (supra) viz. 
 " that if one partner pay more than 
 his share of the partnership debts, 
 he may recover the amount so paid, 
 against any one of the other mem- 
 bers of the firm," is, certainly, 
 quite untenable. As, suppose three 
 partners interested in equal shares, 
 two of whom become bankrupt, 
 and the solvent partner pays the 
 whole of the joint debts, amount- 
 ing to 1500^. He comes for con- 
 tribution against both the bankrupt 
 partners, and proves against the 
 estate of each a debt of 500/. 
 One of the bankrupts pays only a 
 
 dividend of \s. in the pound, upon 
 which the solvent partner applies 
 to prove the deficiency, viz. 475/., 
 against the estate of the other 
 bankrupt partner. If he is per- 
 mitted to do so, and that bankrupt 
 partner pays 20s. in the pound, the 
 solvent partner will by that means 
 receive from one of his copartners 
 the whole of the loss occasioned 
 by the default of the other, without 
 having contributed one farthing 
 himself; a consequence so mani- 
 festly absurd, as induces one to 
 suppose there must be some in- 
 accuracy in the report of the ar- 
 gument in the case above referred 
 to,
 
 Sect. 7.] or partners. 671 
 
 from that of tlie general partnership, and where the articles Proof 
 of one trade have been furnished by one firm to the other, '^ '^tween. 
 
 In this case there are several points of distinction, which ners carry 
 
 it will be of importance to attend to. In the first place, °" ^ differ- 
 
 ^ . ent trade 
 
 the trades must be wholly distinct and different from each under a 
 
 other, and not merely branches of the joint concern. For, distinct 
 if there be in reality only one partnership, arranging dif- 
 ferent concerns belonging to them all in different ways for 
 the benefit of the whole joint concern, there cannot in this 
 case be proof by part against the other part. Thus, where 
 three partners carried on the business of cotton manufac- 
 turers in Lancashire, and two of them had a branch estab- 
 lishment in London, — it was held, that there could not 
 be proof by the estate of the three against that of the two. 
 But if the trades had been perfectly distinct, such as those 
 of cotton maniifactiirers and iro7ijnongers, then the three 
 might have been creditors upon the separate concern of the 
 two. ( 1 ) So, where A. and B. were partners as insurance- 
 brokers, and A. carried on a separate trade as an oilman, 
 in the progress of which he became indebted to the firm, 
 — the assignees of the joint estate were admitted as cre- 
 ditors upon the separate estate. (2) 
 
 In the next place, though a joint trade may prove against One of 
 a separate trade, yet it has been held that one of two jpartners, ^"'^ P^*"*" 
 though carrying on a separate trade, and furnishing goods as not prove 
 a separate trader to the partnership, cannot prove under a ^Sj^'^st the 
 commission against his co-partner; that is, not before all the 
 joint creditors are paid the whole of the principal and interest 
 on their respective debts. For in none of the cases (as 
 Lord Eldon has observed) in which the partner, constituting 
 a distinct house, has ever been admitted to prove, has the 
 estate (against which he has been so admitted) been liable 
 
 (l) In re Skakeshaft, C. B. L. Johns, ibid. Ex parte Heskam, 
 
 538. Ex parte Hargreaves, 1 Cox, 1 Rose, 146. 
 
 440. Per Lord Eldon, 11 Ves. 4 14. (2) Ex parte St. Barbe, \l Ves. 
 
 Ex parte i?jng, C. B.L. 538. Ex 415. 
 parte Freeman, ibid. Ex parte
 
 672 OF PARTNERS. [Cll. 15. 
 
 Proof with that distinct house for joint debts; — the principle 
 
 ^ "^^"' being, that a solvent partner shall not be admitted to prove 
 
 in competition with creditors who have a demand against 
 
 himself. (1) 
 
 Consider- Lastly^ the consideration for the debt must be for goods 
 ation of "^ . . ° 
 
 the debt sold, that is, for articles of one trade furnished to the other 
 
 must be trade, and not for money advanced by one of the firms to 
 
 for flrticlcs ^ */ xy •/ 
 
 outrode. the Other. Therefore, where the debt accrued from the 
 aggregate firm to the separate trade, in respect of monies 
 provided for the aggregate firm on the credit of the in- 
 dorsement of the separate firm — Lord Eldon held, that in 
 this case no proof could be made by the separate firm 
 against the aggregate one (2), as this could not be con- 
 sidered a transaction between trade and trade. But in a 
 recent case, where the question was, whether a partner in 
 a banking house could prove a debt against the estate of 
 another banking firm (in which he was also a partner) for 
 money lent, the Vice-Chancellor decided, that he was en- 
 titled to prove his demand, looking upon the case of a 
 hanker lending money, as that of a trader making ad- 
 vances m the isoay of his trade. [Z) 
 As to or- Where there were three firms commencing at different 
 der for periods, — upon the bankruptcy of the firm in which they 
 distinct were all engaged, distinct accounts were ordered to be 
 accounts, j^gpt of \\^q different partnerships, as well as of the respec- 
 tive separate estates of each individual bankrupt. (4) But, 
 where there have been various partnerships, and a joint 
 
 (1) Ex parte Jrfaws, 1 Rose, .305. (.3) Ex parte Brenchley, supra. 
 In a recent decision, however, of In this case his Honour professed 
 the Vice-Chancellor, he said he that he could not understand some 
 was at a loss to see the ground of of the principles on which the de- 
 distinguishing between a case, cision in ex parte SUlitoe was 
 where there were only tivo part- founded; and that he saw no rea- 
 ners, and one where there were son why any difference should be 
 more. Ex parte Brenchley, Sit- made in the proof of a debt, 
 tings after Trinity Term, 1826. whether it was created by a loan 
 
 (2) Ex parte SUlitoe, 1 G. & J. of money, or by a transaction in 
 •374. the way of trade. 
 
 (4) Ex parte Marlin, 2 Bro. 15.
 
 Sect. 7.] OF PARTNERS. 673 
 
 commission is taken out against one firm, in which some of Proof 
 
 the parties were not engaged, there can only be the com- \ 
 
 mon order for keeping distinct accounts of the joint and 
 separate estates. (1) 
 
 (1) Ex parte Parker, 1 C. B. L. 249. 
 
 X X
 
 674- 
 
 CHAP. XVI. 
 
 OF RELATION TO THE ACT OF BANKRUPTCY. 
 
 Sect. 1. Js to Payments, made hy or to the Bankrupt. 
 
 2. As to Purchasers. 
 
 3. As to other Dispositions of the Banlcrupt's 
 
 Property. 
 
 4. As to Judgments, Executions, and Attachments. 
 
 5. As to Notice of an Act of Banhuptcy. 
 
 Section I. 
 
 As to Payments made hy or to the Bankrupt. 
 
 1 he alterations made by the new statute in the law of 
 relation to the act of bankruptcy, by which all dispositions 
 subsequently made of the bankrupt's property were (under 
 the 13 Eliz. c. 7.) avoided and overreached, have now 
 rendered much of the doctrine, which formerly appertained 
 to this division of the bankrupt law, unimportant for con- 
 sideration. It may suffice to observe, that after the hard- 
 ship of the former enactment had been relaxed by many 
 subsequent statutes ( 1 ), it was still sufficiently oppressive 
 to be designated by Judges from the bench (2) as an odious 
 law ; — and it was also one which they always refused to 
 let a party take advantage of 7ipo?i motion. The new 
 statute will be found to have relaxed the law of relation 
 still further; but whether such relaxation has gone far 
 
 (l) 1 Jac. 1. c. 15. s. 14. 19G.2. (2) Clnrke v. Ryall, lBl.642.; 
 c. 32. s. 1. and see 4 Taunt. 198. Per Mans- 
 
 field C. J.
 
 Sect. 1.] OF RELATION TO THE ACT OF BANKRUPTCY. 675 
 
 enough remains to be considered, and will more especially Payments 
 
 depend upon what construction courts of justice will ftive ^^ ^^'^ 
 
 . , rni • 1 ■ 1. bankrupt. 
 to Its enactments. 1 hese it may be convenient to discuss 1_ 
 
 in the order above mentioned ; and, instead of enumerating 
 
 in the gross the various alterations in this branch of the 
 
 law, it will be better, perhaps, to point them out singly to 
 
 the reader, as they occur in the progress of the inquiry, — 
 
 by which means it will be more clearly perceived in what 
 
 respects the new law differs from the old. 
 
 By seciiofi 82. of the new statute all payments really and All pay- 
 bond Jide made bi/ the bankrupt, or any person on his be- ™^"^* ^ 
 half, before the date and issuing of the commission to any jide with- 
 creditor (such payment not being a fraudulent preference '^^^ notice 
 of such creditor), are declared to be valid, notwithstanding of bank- 
 any prior act of bankruptcy — as well as all payments in i""Ptcy, 
 like manner made to the bankrupt. And such creditor will 
 not be liable to refund the same to the assignees, provided 
 the person so dealing with the bankrupt had not (at the 
 time of the payment by or to the bankrupt) ?iotice of any 
 act of bankruptcy by such bankrupt committed. 
 
 This relation to the act of bankruptcy cannot, of course, Relati 
 
 ion 
 
 be carried further back than the accruing: of the petitioning ^"'^ ^^" 
 
 tends to 
 
 creditor's debt; for the assignees could not avail them- accmincof 
 
 selves of any act of bankruptcy beyond that time, without petitioning 
 
 destroying their title as assignees. (1) ^^l^j. 
 
 The payment by the bankrupt to a creditor is not ecu- Payment 
 
 fined now to a payment " in respect of goods sold, or of a "°*- J^^"" 
 
 bill of exchange, in the usual and ordinary course of trade," former 
 
 (as was formerly held under the 19 G. 2. c. 32.) in order restriction; 
 
 to be protected (2) ; — for those words (which were inserted 
 
 in that act) are purposely omitted in the above section, 
 
 (l) Ex parte J5mteif, 2Rose, 71. Harwood v. Lomas, 11 East, 127. 
 
 Ex parte Bowness, 2 M. & S. 479. Bayly v. Schofield, 2 M. & S. 338. 
 
 {1) Bradley y. Clark, bH.^.X^l. Ex parte Congalton, 3 Bro. 47. 
 
 Vernon \. Hall, 2 T.'R.GA.S. Pin- Tarnplin \. Diggins, 2 Camp. 512. 
 
 kerton v. Marshall, 2 H. B. 334. Blogg v. Phillips, ibid. 129. 
 
 X X 2
 
 676 
 
 OF RELATION TO THE 
 
 [Ch. 16. 
 
 Payments 
 BY the 
 bankrupt. 
 
 but must 
 be a bon/i 
 Jide pay- 
 ment, 
 
 and made 
 by the 
 bankrupt, 
 or his 
 agent. 
 
 Indorse- 
 ment and 
 acceptance 
 of bills of 
 exchange. 
 
 Bartering 
 goods. 
 
 which extends to all bona jide payments whatever. It 
 must still, however, be strictly a bond Jide payment ; and 
 therefore a payment in any mercantile dealings, which is 
 not in the ordinary course of trade, would not even now 
 be considered a payment bond Jide — such, for instance, 
 as a payment made for goods bejore they are delivered [\) 
 — or, perhaps, a payment by weekly instalments for goods 
 previously sold and delivered to the bankrupt. (2) 
 
 The payment, also, which is contemplated by the act, 
 must be a payment by the banJcrupt himself^ or his author- 
 ized agent. Therefore, a payment made hy b, third person 
 without the knowledge of the bankrupt — or a payment ex- 
 torted by compulsion of legal process (by foreign attach- 
 ment, for example, even after judgment) from a third 
 person, who happened to have effects of the bankrupt in 
 his hands at the time — cannot be said to be a payment by 
 the bankrupt^ or by a person on his behalf, when the bank- 
 rupt was not even conscious that his property was in the 
 hands of such third person. (3) 
 
 The indorsement and delivery of bills of exchange by 
 the bankrupt to a creditor after a secret act of bankruptcy, 
 where the creditor received the money due on the bills 
 before the commission issued, was held by Lord Hardwicke 
 to be a. good payment within the statutes of 1 Jac. 1. c. 15. 
 and 19 G. 2. c. 32. — on the ground, that there was no dif- 
 ference between an actual payment of money in satisfaction 
 of a debt, and indorsing bills of exchange (provided the 
 money was received on them before the commission is- 
 sued), — such indorsement being only a ynedium of pay- 
 ment. (4) So, the acceptance of a bill (which is afterwards 
 duly paid) is equivalent to a payment of the debt in money at 
 the time (5) of the acceptance. And the giving goods in ex- 
 
 (1) Per Bayley J. 3 B. & C. 416. 
 
 (2) Bolton V.' Jager, 1 Ryan & 
 M. 265. 
 
 (.3) Hovil V. Browning, 7 East, 
 154. 
 
 (4) Hawkins v. Pcnfold, 2Ves. 
 550. 
 
 (5) Per Abbott C. J. Sowerby v. 
 Brooks, 4 B. & A. 525.
 
 Sect. I.] ACT OF BANKRUPTCY. 67^ 
 
 change for other goods was also held by Lord Kenyon to Payments 
 be a (1) ffood payment. i^ /"^ , 
 
 ^ ' ti i- J _ ... bankrupt. 
 
 The bankers of a bankrupt are in the same situation in 
 
 regard to him, as other persons are in this respect; and if T^^J^^r*^^ 
 they receive money from him after notice of an act of bank- after no- 
 ruptcy, they are bound to retain it for the use of the assignees. ^^^^ °^ ^" 
 Any payments, therefore, made by them upon account of bankrupt- 
 drafts drawn by the bankrupt, after they have had notice of ^^J- 
 an act of bankruptcy — or any payments of money over to 
 the bankrupt himself — will not be protected. Neither can 
 they set off any payment so made, or be allowed to come in 
 as creditors in respect of it under the commission. (2) 
 
 "Where a bankrupt shortly befoi'e his bankruptcy drew a Money in 
 
 bill which he procured to be discounted, and then save 'he hands 
 
 ^ ^ ' o oi a car.- 
 
 his creditor an order to receive the amount, directing the rier. 
 
 person who discounted the bill to transmit it to the credi- 
 tor — and whilst the money was in the hands of the carrier, 
 committed an act of bankruptcy; — it was held, that the 
 creditor (to whose hands the money did not come until 
 after the act of bankruptcy) was liable to refund it to the 
 assignees ; for, whilst the money remained in the hands of 
 the carrier, the property in it remained unaltered (3), not- 
 withstanding the order to receive it was given to the 
 creditor before the bankruptcy. Though this point would 
 be ruled differently now, with respect to the relation to the 
 act of hankruptci), — yet the principle of the decision will 
 apply to a case, where a creditor receives money under 
 similar circumstances after the issuing of the commission. 
 
 A payment of a debt by the bankrupt upon being ar- Payment 
 
 rested (4'), or threatened with an immediate arrest (5\ is a '?™ "* 
 ^ " . . . ot arrest. 
 
 bona, fide payment within the statute, notwithstanding a 
 
 secret act of bankruptcy. But, where a trader upon being 
 
 (1) Wilkins v. Casey, 7 T. R. (.") Hervey \. JAddiard, 1 Star. 
 713. 128. 
 
 (2) Vernon v. Hankey, 2 T. R. (4) Cox v. Morgan, 2 B. & P^ 
 113. sBro. 313. Hammersley v. 398. Holmes v. Winnington, cit. 
 Purling, 3 Ves. 757. ibid. 
 
 (5) Jo7ies V. Lingard, cit. ibid. 
 
 XX 3
 
 678 
 
 OF RELATION TO THE 
 
 [Ch. 16. 
 
 Payments 
 BY the 
 bankrupt. 
 
 Repay- 
 ment of 
 money 
 clothed 
 with a 
 trust. 
 
 Payment 
 to avoid a 
 
 distress. 
 
 Payment 
 in consi- 
 deration 
 of sur- 
 render of 
 lien. 
 
 arrested and afterwards charged at the suit of several 
 persons, sent for all the creditors at whose suits he was 
 detained except one — and paid those creditors alone the 
 full amount of their debts — such payments were not con- 
 sidered to be bond jfide. ( 1 ) And where a trader was ar- 
 rested upon a ca. sa. after he had committed an act of 
 bankruptcy — and thereupon placed goods in the hands of 
 the sheriffs' officer to raise money upon them, who accord- 
 ingly pledged them, and five weeks afterwards paid over 
 the amount to the party, at whose suit the bankrupt had 
 been arrested ; — this transaction was considered also to 
 be not a bona Jide payment. (2) But where a party ad- 
 vanced money to a bankrupt during his imprisonment, for 
 the express purpose of enabling him to settle with his credi- 
 tors — and (that purpose failing) a part of the money was 
 repaid to him by the bankrupt ; — in this case, the money 
 was held to be clothed with a specific trust, which pre- 
 vented it from passing to the assignees ; and consequently 
 the repayment was protected. (3) 
 
 A payment by a tenant to a landlord to avoid a distress 
 is a bona Jide payment, even though the landlord knew of 
 an act of bankruptcy ; for, having by law a right of distress, 
 if he thinks fit to waive that right and accept of the rent, 
 he is not to be placed in a worse situation than if he had 
 made an actual distress. (4) And though there are no 
 goods on the premises, such a payment by the tenant will 
 be valid ; as the landlord would have a right to distrain on 
 any goods which might be subsequently placed there. (5) 
 
 A payment made by the bankrupt to a party who had 
 a lien on papers in his hands for a balance due, which 
 he delivered up on payment of such balance, was held to be 
 a bona jide payment ; — though the party did not expressly 
 stipulate for payment as a condition for the surrender of 
 
 {\) Southey\, Butler, Z^. 8c '^. {4) Stevenson v. Wood, 5 Esp, 
 
 237. 200. 
 
 (2) Allanson v. Atkinson, 1 M. & (5) Mavor v. Croomc, 1 Bing. 
 
 S. 583. 261. 
 
 (5) Coles \. Robins, 3 Camp. 185,
 
 Sect. 1.] ACT OF BANKRUPTCY. 679 
 
 the lien — and even though the party received sucli payment Payments 
 from the bankrupt in the King's Bench prison, where he Y^ 1 
 
 was actually confined at the time — and the lying in prison 
 
 was itself the act of bankruptcy on which the commission 
 issued. ( 1 ) 
 
 Where a bankrupt, previous to an act of bankruptcy, Money re- 
 gave a power of attorney to his creditor to receive sums of ^^'v^" fjf' 
 money due to the bankrupt, and to apply them to the ere- rnjHcy 
 ditor's own use, — any money received under such power ""'ler a 
 by the creditor cifter the bankruptcy was held to be recover- attorney, 
 able by the assignees. (2) 
 
 The relation to the act of bankruptcy, it seems, only Relation 
 affects payments and transactions by the bankrupt, which onlyaffects 
 may operate to the prejudice of the assignees, or interfere which may 
 in any manner with their rights ; for in other respects the prejudice 
 act of a man, who has committed an act of bankruptcy, has ^ggg "" 
 the same effect as the act of any other person. (3) There- 
 fore where a bankrupt, having securities in his bankers' 
 hands to a certain amount, drew upon them a bill for a 
 larger amoimt, on the score of his accommodation — which 
 (after acceptance, and after an act of bankruptcy) he in- 
 dorsed to a third person ; — it was held, that the indorsee, 
 though not entitled to recover against the bankers the 
 whole amount of the bill — which would have prejudiced 
 the right of the assignees to the amount of the securities 
 held in the bankers' hands — might nevertheless recover to 
 the extent of the difference between the amount of such 
 securities and the amount of the bill. (4) 
 
 With respect to payments to a bankrupt — it is provided 
 by section 84. (5) of the new statute, (in addition to the 
 82d section above mentioned) that no person or body cor- 
 
 (1) Thompsony.Beatson,\'Qmg. (4) Willis \. Freeman, 12 East, 
 145. ; but see post, 682. 656. 
 
 (2) Hovill V. Lethivaite, 5Esp. {5) This section is taken from 
 158. the 56G.3. C. 137. S. 1. 
 
 (s) Per Lord Ellenbo rough, 
 12 East, 659. 
 
 X X 4
 
 680 
 
 OF RELATION TO THE 
 
 [Ch. 16. 
 
 Payments 
 TO the 
 banhrupt. 
 
 Distinc- 
 tion be- 
 tween pay- 
 ments by, 
 and pay- 
 ments to, 
 the bank- 
 rupt. 
 
 Payment 
 without 
 knowledge 
 of act of 
 bank- 
 ruptcy. 
 Payment 
 made in 
 antici- 
 pation of 
 a consign- 
 ment. 
 
 porate, or public company having in his or their possession 
 or custody any money, goods, or effects belonging to any 
 bankrupt, shall be endangered by reason of the payment or 
 delivery thereof to the bankrupt or his order, provided such 
 person or company had not notice that such bankrupt had 
 committed an act of bankruptcy. 
 
 Payments made to a bankrupt after a secret act of bank- 
 ruptcy depend, for their validity, upon the same principle 
 as payments made by him ; they must be equally hona^fide^ 
 and in discharge of a debt or other legal liability. But 
 there is a great distinction in reality between the effect (as 
 it relates to the general creditors) of the invalidity of a 
 payment 5z/, and of a payment to^ a bankrupt; that is, 
 between a creditor losing the benefit of a receipt of money, 
 and being subjected to make a payment twice over. In 
 the case of a payment to the bankrupt — that payment must, 
 unless there be great misconduct on the part of the bank- 
 rupt, enure (by an increase 'pro tanto of the distributable 
 fund) to the benefit of those very creditors, who claim 
 the second payment of the same debt ; whereas a receipt 
 from, a banlrupt operates pro tanto in diminution of the 
 distributable fund — and, so far as it extends, defeats the 
 general object of the law, viz. an equal division among 
 all the creditors. (1) Accordingly, where a party bought 
 goods of a trader who had previously committed an act of 
 bankruptcy, and paid for them honajide without knowledge 
 of the act, such a payment was held to be protected. (2) 
 But the contrary has been subsequently held, with respect 
 to a payment made by a party who was not actually indebted 
 to the bankrupt at the time, notwithstanding it was made in 
 anticipation of a consignment of goods, which had been pre- 
 viously ordered of the bankrupt by the person making such 
 payment. (3) As the Court, however, decided this last case 
 upon the ground, that the defendant (when he made the 
 
 (1) Per Abbott C. J. 4 B. & C. (5) Bishop v. Crawshay, 3 B. & 
 531. C. 415, 
 
 (2) Cash V. Young, 2 B. & C. 
 413.
 
 Sect. 1.] ACT OF BANKRUPTCY. 681 
 
 payment) was not " a dehtor of the banlcru'pf* within the Payments 
 1 Jac. 1. c. 15. s. 14. — and as those words are omitted in ^ankrwnt 
 
 the 82d section of the new statute, which extends generally 
 
 to all payments really and bondjide made before the date of the 
 commission — it is probable, when a case of this kind comes 
 again before the Court, it would meet with a different decision. 
 
 Where money was paid to a bankrupt by a party, who Payment 
 had received it from the bankrupt's debtor, to convey to sen^en^*^ 
 the bankrupt in the character merely of a messenger or 
 hearer^ — such a payment, it was held, could not be disputed 
 by the assignees, as against such messenger or bearer, 
 though he was aware that the bankrupt was in prison at 
 the time. ( 1 ) 
 
 Where a factor gave his acceptance after a secret act of Payment 
 bankruptcy of his principal (of which he had then no notice) ^^^^ n^ ' 
 for the amount of goods sold by him for his principal, — the hands 
 though the factor paid the acceptance to a third person person") re- 
 after notice of the act of bankruptcy, the payment was held latestothe 
 to be protected ; as it was to be considered a payment in ^^^^^^ ^ 
 reference to the giving of the bill, and not in reference to not to the 
 the time when it became due. (2) And the same point ^™j "' " 
 was lately ruled at Nisi Prius{3) before Lord Chief Justice 
 Best. But, where the factor had not sold the goods, but Factor, 
 had accepted and paid bills in respect of them after a secret 
 act of bankruptcy of the principal, — in this case, the pay- 
 ment was held to be not a jjaT/ment of an antecedent debt, 
 but an advance of money — and therefore not protected, so 
 as to prevent the assignees (4) from recovering the goods 
 in trover from the factor. 
 
 The act of bankruptcy by lying in prisoji (as we have As to pay- 
 before seen) (5) was under the former law held to relate "'^"^'^ to a 
 1 1 1 p 1 1 • bankrupt 
 
 back to the day of the first arrest — or day of surrender in when in 
 
 discharge of the bail — and to operate as if the arrest, or P"son. .^ 
 
 (1) Coles V. Wright, 4 Taunt. {5) Bennettv. Spachnan,\ C^rv. 
 198. N. P. 274. 
 
 (2) Wilkins v. Casey, 7 T. R. (4) Copeland v. Stein, 8 T. R. 
 712, 199. 
 
 (5) See ante, page 79.
 
 682 OF RELATION TO THE [Ch. 16. 
 
 Payments or surrender, was in itself a complete act of bankruptcy. 
 TO the Consequently, where a payment was made to a trader in 
 
 prison, with full notice of that fact — and with notice also 
 
 from an attorney, that a commission would shortly be 
 issued, and that the act of bankruptcy would relate back to 
 the day of the imprisonment — and the requisite time to 
 constitute an act of bankruptcy was afterwards completed, — 
 such a payment was held to be ( 1 ) not protected. But 
 where the payment was made to an agent of the bankrupt, 
 without any knowledge of the bankrupt being in prison, — 
 in this case the payment was considered valid; though 
 Lord Ellenborough observed, that if the party had known 
 the fact, out of which the bankruptcy sprung, this would 
 have deprived him of the protection of the statute. Yet 
 we have seen (2), that a payment hy a bankrupt to a cre- 
 ditor was held good, though the creditor actually received 
 the money from the bankrupt in the very prison where he 
 was confined. And, indeed, it seems somewhat doubtful, 
 for the reasons before stated in treating of this particular 
 act of bankruptcy, whether it will now be held to relate 
 As to frac- back to ihe Jirst day of the imprisonment. (3) The same 
 tion of a doctrine, however, as to the fraction of a day (which applies 
 to other acts of bankruptcy) applies also to this ; and accord- 
 ingly where the sheriff took possession under an execution, 
 and at a later hour of the same day on which the bankrupt 
 surrendered in discharge of his bail, the execution was 
 holden valid. (4) For the very hour of the day when a fact 
 took place (as to all purposes connected with a right of 
 property) may be properly inquired into ; though the 
 parties are entitled to take the whole day into account, in 
 calculating the period of the imprisonment, with a view to 
 the (5) act of bankruptcy. 
 
 (1) King V. Leilh, 2 T. R. 141. v. Gregg, 3 Star. 72.; and see Sad- 
 
 (2) Ante, 679. let- v. Leigh, 4 Camp. 195. Wt/- 
 (,~) See ante, page 79. rfojow's case, 14 Ves. 87. Glassing- 
 
 (4) Thomas v. Desangcs, 2 B. & ton v. Bawlins, 3 East, 407. Ex 
 A. 586. parte Birkctl, 2 Rose, 7 1 . 
 
 (5) Per Abbott C. J. Saunderson
 
 Sect. 1.] ACT OF BANKRUPTCY. 683 
 
 When the act of bankruptcy consists in escaping aid of Payments 
 jvison, or custody^ it is then expressly declared, by \\\ejifth f° ^^'^ 
 section of the new statute, to relate back to the time of the ' 
 arrest, commitment, or detention. 
 
 A payment made to the bankrupt by coercion at law, Payment 
 before the execution of the commissioner's assignment, ^^y coer- 
 even with notice of an act of bankruptcy, has been always i^^^ 
 considered valid, unless fraud or collusion can be shewn 
 between the debtor and the bankrupt. ( 1 ) And it is no de- 
 fence against an action by the bankrupt, that he has com- 
 mitted an act of bankruptcy of which the defendant has 
 notice, if no commission be actually sued out, nor any pro- 
 ceeding be instituted for that purpose. (2) But it has been Forei<m 
 held, that a debtor of a bankrupt was not warranted in paying attach- 
 funds of the bankrupt's to a creditor (who sued the bank- 
 rupt in the mayor's court) upon an attachment merely 
 against the debtor as garnishee, — for that he was not justi- 
 fied in paying over the money, hefore judgment had been ob- 
 tained against him. (3) And even in a case 'whexejudgmejit 
 
 (1) Pryn \. Beale, 3 Keb. 230. " formance of Ids duty. From the 
 Andrews v.Spicer,Wi\i\.G\G. Fos- "expressions, too, thrown out in 
 tei' V. Allanson, 2 T. R. 479. " some of the cases, it would seem 
 
 (2) Ibid. Prickett v, Down, " not sufficient for the defendant 
 3 Camp. 131. "to express his readiness to make 
 
 (3) Windham v. Paterson, 1 Star. " the payment demanded, but to 
 147.; and see Barker v. Goodair, "require that, for his indemnity, 
 11 Ves. 78. Sir Wm. Evans has " an action should he ji^'osectited to 
 made some very just and forcible "judgment. As a payment before 
 observations on these decisions, in " judgment might, therefore, be 
 his note to the statute 1 Jac. 1. " treated as collusive, perhaps a 
 c. 15. s. 14. and in his Letter to "judgment by defaidt, or confes- 
 Sir S. Romilly (page 204.) " It is " sion, vi^ould not be regarded in a 
 " impossible," he says, " to con- " much more favourable light. And 
 " ceive a greater anomaly or ab- " thus a party, perfectly willing to 
 " surdity, than the law in this re- " perform an engagement which 
 " spect exhibits. In every other " can be legally enforced, is, with- 
 " case, an action founded upon " out any default of his own, and 
 " contract supposes the actual " from collateral circumstances 
 " breach of a previous obligation, " which he has nothing to do with, 
 " which it was incumbent on the " subjected to the expense and in- 
 " defendant to perform; but in "convenience of a legal process, 
 " this case the action itself is ren- " attended possibly with arrest 
 " dered necessary, in order to ren- " and imprisonment, before he can 
 " der the party secure in the jK-r- " satisfy with safety the claimt
 
 684 
 
 OF RELATION TO THE 
 
 [Ch. 16. 
 
 Payments 
 TO the 
 hanlcrupt. 
 
 As to bill 
 of inter- 
 pleader- 
 
 Payment 
 under a 
 commis- 
 sion which 
 is super- 
 seded. 
 
 XQas obtained against the garnishee, and he had paid over the 
 money to the creditor, the creditor was held bound to 
 refund to the assignees. (1) Where a banker, however, 
 who had in his hands a balance due to an insolvent trader, 
 was served with different attachments by his creditors, and 
 then held to bail in trover by the trader himself, — it was 
 held, that he was entitled to relief in equity on a bill of in- 
 terpleader. (2) But it seems the better plan in such a case 
 would have been, to pay the money into court in the 
 action, which would have operated as a discharge at law, 
 and would have prevented the necessity of a bill of in- 
 terpleader. (3) 
 
 Where a debtor paid the amount of the debt to as- 
 signees under a commission, which was afterwards super- 
 seded — and the same assignees were appointed under the 
 second commission, — the payment was held to be protected 
 under the 46 G. 3. c. 135. s. 1., by the relation of the rights 
 of the assignees, which were revested in them by the second 
 commission, and which the defendant believed to exist 
 when the payment was made. (4) 
 
 " which he is totally unable to re- 
 " sist. In common cases of con- 
 " flicting claims, a person, who is 
 " willing to satisfy his obligation 
 " according to the right, may be 
 " released from becoming a party 
 " to a contest in which he has no 
 " concern, by means of a bill of 
 " interpleader ; but in the case 
 " under consideration" — (which 
 was not a proceeding by foreign at- 
 tachment) — " there can be no such 
 " assistance ; for the claim is all on 
 " one side, and there is no com- 
 " petitor who can be brought 
 " before the Court." In order to 
 apply the proper remedy to such a 
 defective state of the law, he sug- 
 
 gests, that all payments, although 
 after knowledge of an act of bank- 
 rwptcy committed, shoulil be pro- 
 tected if made before a commission 
 lias actually issued, unless the com- 
 mission should be taken out within 
 so short a period after the act of 
 bankruptcy, as might be productive 
 of a mere race between the com- 
 mission and the payment. 
 
 (1) Hovil V. Browning, 7 East, 
 154.; and see ante, 616. 
 
 (2) Langston v. Boylston, 2 Ves. 
 jun. 101. 
 
 (5) Ibid. 
 
 (4) Davcnj)ort v. Carter, 5 Moore, 
 16.
 
 Sect. 2.] ACT OF BANKRUPTCY. 685 
 
 Section II. 
 As to Purchasers. 
 
 ^y section 81. {1) of the new act, all conveyances by, Contracts 
 and all contracts and other dealings and transactions by '^^° 
 and with any bankrupt, bojid Jide made and entered into before 
 more than two calendar months before the date and issuing comniis- 
 of the commission, are declared to be valid, notwithstanding thou<^h 
 any prior act of bankruptcy, provided the person dealing after act of 
 with the bankrupt had not at the time notice of any prior cy"unim-" 
 act of bankruptcy (2) by him committed. Provided also, peachable 
 that where a commission has been superseded, if any other j^otice"' 
 commission shall issue against the bankrupt within two 
 calendar months after it shall have been supei'seded, no 
 such conveyance, &c. sliall be valid, unless made or exe- 
 cuted more than two calendar months before the issuing of 
 the first commission. 
 
 This last proviso in the above section was introduced to As to pro- 
 remedy a mischief, which, it seems, had crept into the bank- ^'^^ '" 
 rupt law since Sir S. Romilli/s act. It frequently happened commis- 
 that creditors, in order to avail themselves of a fraudulent ^ion is 
 preference, and prevent being called upon to refund — seded and 
 (which they would be obliged to do by the issuing of a valid a second 
 commission within two months) — resorted to the device 
 of procuring a friend to sue out an invalid commission^ and 
 keep it alive until the tiao months elapsed^ — and then, 
 when a new commission issued after the first was superseded, 
 they could thus bid defiance to the claims of the assignees. 
 
 In considering the above section, it is proposed in the 
 first place to inquire more especially how it operates with 
 
 (1) This section, with the ex- (2) In the former acts, the no- 
 
 ception of the last proviso con- tice was extended to insolvenci^ and 
 
 taincd in it, is taken from the stoppage of payment. 
 46 G. 3. c. 135. s. 1. and 49 G.3. 
 c. 121. s. 2.
 
 686 
 
 OF RELATION TO THE 
 
 [Ch.l6. 
 
 As to puv regard to jnirc/iaserSf though we may perceive it applies to 
 
 ciascrs^^ all dealings and transactions generally with the bankrupt. 
 
 It will be also material to distinguish between purchasers 
 
 wiihout notice of an act of bankruptcy, and purchasers with 
 
 notice of such act. 
 
 As to pur- 
 chase of 
 goods 
 without 
 notice, paid 
 for in the 
 ordinary 
 course of 
 trade. 
 
 When 
 goods are 
 not paid 
 for. 
 
 And, first, as to purchasers without notice. Although a 
 purchaser without notice of any prior act of bankruptcy is 
 only protected (according to the strict construction of the 
 above enactment) when the purchase is made more than 
 two calendar months before the date and issuing of the 
 commission ; — yet, for the benefit of trade, when goods or 
 articles of merchandise are bona Jide bought of a trader, 
 though less than two months before the issuing of a com- 
 mission against him, and after he had committed an act of 
 bankruptcy — if the goods are paid for in the ordinary 
 course of trade, without knowledge of the bankruptcy, 
 such a purchase cannot be impeached by the assignees. 
 To hold the contrary, indeed, would (as observed by 
 Lord Chief Justice Abbott) be productive of most serious 
 mischief; as it would have the effect of making every 
 person buying any article in a shop in the city of West- 
 minster, or elsewhere not in market overt, and paying for it 
 immediately, liable to pay a second time. (1) When, how- 
 ever, the goods have not been paid for, but purchased (for 
 example) on a contract of sale or return (2) — or where a bill 
 is even accepted for a larger sum than the price of the 
 goods, without any express appropriation of the bill to the 
 payment of the price; — then, notwithstanding the goods are 
 delivered to the purchaser, the assignees may recover them 
 in trover, when they are purchased subsequent to an act of 
 bankruptcy. (3) 
 
 ( 1 ) Cash V. Young, 2 B. & C. 4 1 3. 
 Contra, Saunderson v. Gregg, 
 3 Star. 72. 
 
 (2) Hurst V. Gwennap, 2 Star. 
 306. The decision in this case is 
 not very reconcilable with the facts 
 
 as stated in it, as there appears to 
 have been strong evidence of the 
 affirmance of the sale by the as- 
 signees. 
 
 (5) Bishop V. Crawshay, 5B.& 
 C. 415.
 
 Sect. 2.] ACT OF BANKRUPTCY. 687 
 
 And in a purchase, either of real or personal property, As to pur- 
 made for a fair and valuable consideration without notice of ^ ^^^^^' 
 an act of bankruptcy, — if the purchaser can defend himself Equity 
 at law, a court of equity will not favour assignees in their ^''^ "°^ 
 attempts to avoid the purchase, by enabling them. to take claims of 
 advantage of the relation to the act of bankruptcy. (1) assignees 
 Upon a bill for a discovery, therefore, the Court of Chancery (^[j. pur- 
 will not compel the purchaser to show the time of the pur- chaser 
 chase, for fear it should be overreached, and be within notice. 
 the time after an act of bankruptcy committed. (2) So, 
 also, the Court has refused to compel a man to discover 
 ivhat goods he bought of a bankrupt qfier the bankruptcy 
 and before the commission sued out, where the party had 
 no notice of the act of bankruptcy (3) ; though the Court 
 will compel a disclosure of the consideration of a pur- 
 chase. (4-) 
 
 And though a purchaser without notice has not a prior 
 legal estate in him, but only a better title, or a better right 
 to call for the legal estate, than the assignees, a court of equity 
 will not in this case assist them to avoid the purchase. (5) 
 Where a purchaser, also, had even been guilty of mis- 
 conduct in making a purchase, by giving much less than 
 the value of the premises, for the purpose of defeating the 
 creditors of the vendor, Lord Hardwicke permitted the 
 purchase deed to stand as a security for the money really 
 and honajide advanced. (6) And an equitable purchaser 
 is as much within the protection of the statute, as a pur- 
 chaser by an actual conveyance at law. (7) 
 
 With respect to purchasers and other parties nsoith notice As to pur- 
 of an act of bankruptcy — it has lately been decided, that '^".^f^"'* 
 where a party, to whom the bankrupt had released a 
 
 (1)1 Vern. 27. (4) Skin. 149. 
 
 (2) Anon. Skin. 149. (5) Wilks v. Bodington, 2 Vern. 
 
 (3) Brownw. Williams, 2 Ch.Ca. 599. 
 
 135. Anon. ibid. 136. Wagstaff (6) Barwellv. Ward, 1 Atk.260. 
 V. Reed, ibid. 156. Fisher v. Tou- (7) Read \. Ward, 7 Vin. 1'19. 
 ckeit,! Eden, 158. Abcryv. Wil- 
 liams, 1 Vern. 27.
 
 G88 
 
 OF RELATION TO THE 
 
 [Ch.16. 
 
 As to puT' 
 chasers. 
 
 Purchases 
 with notice 
 good, un- 
 less com- 
 mission 
 sued out 
 within 
 twelve 
 months. 
 
 The twelve 
 months to 
 be reckon- 
 ed from 
 the act of 
 bank- 
 ruptcy, of 
 which the 
 purchaser 
 had notice. 
 
 debt after the act of bankruptcy, knew that the bankrupt 
 was insolvent (1), the release was invalid, although it was 
 executed more than two months before the commission 
 issued. (2) And the assignees, in an action against such 
 party, need not aver in pleading, that the defendant knew 
 of the act of bankruptcy when he took the release ; but it is 
 sufficient at the trial to prove, that he had such notice. (3) 
 
 But by section 86. of the new statute, it is declared that no 
 purchase from any bankrupt bojid jtde and for valuable 
 consideration, though the purchaser had notice at the time 
 of such purchase of an act of bankruptcy by such bankrupt 
 committed, shall be impeached by reason thereof, unless the 
 commission against such bankrupt shall have been sued out 
 within twelve calendar months after such act of bankruptcy. 
 
 This provision is an extension of the relief afforded by 
 the 21 Jac. 1. c. 19. s. 14., under which no purchase could 
 be impeached after the expiration of five years ; but in the 
 construction of which statute it was holden, nevertheless, 
 that no purchaser whatever was protected who had notice. 
 
 In order to impeach a purchase *with notice of an act of 
 bankruptcy, the commission must be sued out within twelve 
 calendar months after the act of bankruptcy, of which the 
 purchaser had notice ; for the statute is express in restrict- 
 ing the period to twelve months after such act of bank- 
 ruptcy. Its being sued out, therefore, within twelve 
 months of any other act of bankruptcy will not be suffi- 
 cient. And, indeed, under the 21 Jac. 1. c. 19. it was 
 determined, that if an act of bankruptcy was committed, 
 and then a sale made by the bankrupt — and then another 
 act of bankruptcy — and a commission was sued out within 
 five years after the last act, but above five years after the 
 first — the sale should not be defeated under these circum- 
 stances ; for an act of bankruptcy to avoid a sale under that 
 
 (1) The knowledge would, of 
 course, now be confined to an 
 act of bankruptcy ; for knowledge 
 merely of insolvency, or stoppage of 
 payment, can (under the new act) 
 
 no longer be considered as con- 
 structive notice. See post, 69G. 
 
 (2) Mavor v. Payne, 3Bing.285. 
 
 (•■5) Ibid. 
 
 15
 
 Sect. 3.] ACT OF BANKRUPTCY. €83 
 
 Statute must have been committed before the sale, and also ^s to pur- 
 
 within five years before the commission. (1) ^ 
 
 A subsequent act of bankruptcy, however, has been A siibsc- 
 
 holden not to defeat the interest which creditors have ^"^'"^^'^^ 
 
 acquired in the bankrupt's estate by a prior act ; therefore, ruptcy 
 
 where after one act of bankruptcy was committed, another j ,9^ "^f" 
 
 was committed by an outlawry, and the king thereupon efiectofa 
 
 made a lease of the profits of the bankrupt's lands, and a "^'''^^®*' 
 
 on6> 
 grant of his chattels, — the lease and grant were held, 
 
 under the 21 Jac. 1. not to prejudice the creditors of the 
 
 bankrupt, the commission being sued out within five years 
 
 after the fifst act of bankruptcy. But if the commission 
 
 had been sued out five years after that act of bankruptcy, 
 
 then the assignee of the king's lease would have been 
 
 considei'ed a purchaser within ' the statute (2), and not to 
 
 be impeached. 
 
 The relation of the act of bankruptcy, as it affects the 
 
 right of a mortgagee to tack further advances made after 
 
 an act of bankruptcy, lias been already considered in a 
 
 former chapter. (3) 
 
 Section III. 
 As to other Dispositions of the Bankrupts Property. 
 
 The %\st section of the new act (as we have already seen) 
 not only applies to purchasers, but to all contracts and other 
 dealings and transactions made with a bankrupt more than 
 two calendar months before the date and issuing of the 
 commission. 
 
 The assignees, being subject to the same equities as the Bill of ex- 
 bankrupt, are bound by the beneficial transfer of property change de- 
 
 (l) Bradfordv.Bl2idworth,lLev. (2) Pain v. Teap, 1 Salk. 108. 
 13. 2 Sid. 69. Spencer y.Vanacrc, (5) Chap. IX. sect. 6. 
 Keb. 722.; and see Jellif v. Horn, 
 Keb.u. 
 
 Y Y
 
 690 
 
 OF RELATION TO THE 
 
 [Ch. 16. 
 
 Other dis- 
 jiositions of 
 properly. 
 
 more than 
 two 
 
 months, 
 and in- 
 dorsed 
 within that 
 period. 
 
 Goods at 
 sea assign- 
 ed before 
 bank- 
 ruptcy. 
 
 Other 
 goods can- 
 not be 
 substitut- 
 ed after 
 act of 
 bankrupt- 
 cy for 
 goods 
 assigned 
 before. 
 
 Ships at 
 sea, when 
 act of 
 bankrupt- 
 
 hona fide made by him before the bankruptcy, although 
 before such transfer is strictly completed at law the act of 
 bankruptcy may intervene. Thus, where a bill of exchange 
 was merely delivered, by a bankrupt to the indorsee (though 
 with the real intent of transferring the property in it to 
 him) more than two months before the commission, but 
 the indorsement was not, in effect, written upon it until 
 within the two months, — Lord EUenborough held, that 
 the writing of the indorsement had reference to the delivery 
 of the bill, and that the indorsee was entitled to it against 
 the assignees. (1) And in another case, where the indorse- 
 ment was not made even until after the commission issued, 
 it was equally holden to be valid. (2) 
 
 Upon the same principle, in the case of goods at sea, 
 where a hona fide assignment is made of the property 
 before the act of bankruptcy, and the bills of lading are 
 not indorsed till afterwards, the indorsement of the bills of 
 lading cannot be impeached. (3) But, though the legal 
 transfer of property, which has been equitably assigned 
 before an act of bankruptcy, can be perfected afterwards, — 
 yet other property cannot be then substituted for the pro- 
 perty originally assigned. Therefore, where a trader 
 pledged for value the bills of lading of an expected cargo, 
 part of which his agents abroad without his knowledge had 
 disposed of — and after having committed an act of bank- 
 ruptcy, he then caused other goods to be substituted, and 
 sent the bills of lading of these goods to the pawnees, — it 
 was held, in this case, that the pawnees could not retain 
 the substituted goods against the assignees. (4) 
 
 With respect to the transfer of property in sliijps at sea 
 (in order to give effect to which certain forms are required 
 by the registry act (5) ) it is now settled, that notwithstand- 
 
 (1) Anon. 1 Camp. 492. 
 
 (2) Smith V. Pickering, Peake, 
 50.; and see Ex parte Greening, 
 13Ves.206, 
 
 (3) Lempricre v. Pasley, 2 T. R. 
 
 485. 
 160. 
 
 Brown v. Heathcote, 1 Atk. 
 
 74. 
 
 (4) Meyer v. Sharpe, 5 Taunt. 
 
 (5) 4 G. 4. c. 41. s. 35, 36, 31. 
 and sec ante, 418.
 
 Sect. 3.] ACT OF TJANKRUPTCY. G91 
 
 ing an act of bankruptcy intervenes between the execution Other dis- 
 of the bill of sale, and the full compliance with all the re- property. 
 
 quisites of the rej^istry act, — yet if all those requisites are in 
 
 fact finally complied with pursuant to the directions of the jj^^, ,j|n ^^• 
 statute, the transfer of the property will be held good sale and 
 against any claim of the assignees. For the bill of sale is .jij.tiy„ „f 
 held now to pass the absolute property in the ship, subject the requi- 
 only to be divested in case the directions of the registry ^.pfj^j,j° 
 act are not pursued. Therefore, a power of attorney from act. 
 a bankrupt to sign an indorsement on the certificate of Power of 
 registry of a ship when she returned home, in order to ^^ s["^^ 
 give effect to a previous bill of sale, is not revoked by a sub- indorse- 
 sequent act of bankruptcy — it being only a power to do a f^g" ^"(.gp 
 mere formal act, which the bankrupt himself might have not re- 
 been compelled to execute notwithstanding his bank- 7 f ^ 
 ruptcy. (1) Where, however, the act of bankruptcy in- ruptcy. 
 tervenes between the bill of sale, and the completion of the When 
 
 forms required bv the rejjistrv act, and there is at the same ^'"^^'^ ^,* 
 1 "_ D J ' ^ ^ gross de- 
 
 time gross delay in the completion of those requisites, — lay. 
 
 then the bill of sale will become void as against the 
 assignees. (2) And where certain things regarding the 
 registry ai'e directed to be done, without specifying any 
 given time for their completion, they must be done within 
 a reasonable time ; which (Lord EUenborough observed) 
 is as capable of being ascertained by evidence, as if it 
 had been fixed by the act of parliament. (3) 
 
 Where a trader after a secret act of bankruptcy con- Goods 
 signed goods to a factor, who agreed to advance money consigned 
 thereon, and accordingly accepted and paid bills drawn on sold by a 
 him by the trader, and afterwards sold the goods and re- factor 
 ceived the money, — the factor was held to be answerable "^t of 
 to the assignees for the value of the goods, upon the bank- 
 ground of relation back to the act of bankruptcy. (4) So """P*^-^* 
 
 (l) Dixon V. Ewart, Buck, 94. (2) Moss v. CharnocJc, 2 East, 
 sMeriv. 322. ; and see Palmer \. 599. Per Bayley J. 2 M. &S. 51. 
 Moxon, 2 M. & S. 43. Mestaer (3) 2 M. & S. 50. 
 \. Gillespie, 1\ Yes. 657. Hubbard (4) Copcland v. Stein, 8 T. R. 
 V. Jofnisto7i, 3 Taunt. 208. 199. 
 
 Y Y 2
 
 692 
 
 OF RELATION TO THE 
 
 [Ch. 16. 
 
 Other dis- an agreement between the bankrupt and the defendants 
 property? before the bankruptcy, that the defendants should accept 
 bills, to enable the bankrupt by his agent abroad to pur- 
 chase cargoes and transmit them to the defendants, who 
 were to pay their acceptances out of the proceeds, and to 
 place the surplus to the account of the bankrupt, — is no 
 defence to an action by the assignees for proceeds received 
 by the defendants after the bankruptcy/. {!) 
 
 The relation to the act of bankruptcy of one partner, as 
 it affects subsequent transfers of the partnership property 
 by the solvent partner, has been already fully considered 
 in the preceding chapter. (2) It is greatly to be lamented, 
 that so much difference of opinion prevails upon this very 
 important branch of the bankrupt law between the courts 
 of law and equity. 
 
 Execu- 
 tions and 
 attach- 
 ments 
 levied 
 more than 
 two 
 months 
 before 
 commis- 
 sion, good. 
 
 Execution 
 creditors 
 put on the 
 same foot- 
 ing as 
 others ; 
 
 Section IV. 
 Of Executions and Attachments. 
 
 By the 81 5^ section before referred to, all executions and 
 attachments against the lands and tenements, or goods and 
 chattels, of a bankrupt, bo?id fide executed or levied more 
 than two calendar months before the issuing of the com- 
 mission, are, declared to be valid, notwithstanding any prior 
 act of bankruptcy, provided the person, at whose suit such 
 execution or attachment shall have issued, had not at the 
 time notice of any prior act of bankruptcy. (3) 
 
 But by section 108.(4) no creditor having security for 
 his debt, or having made any attachment (in London or 
 any other place by virtue of any custom there used) of the 
 goods and chattels of the bankrupt, shall receive upon any 
 such security or attachment more than a rateable part of 
 
 (1) Carter V.Barclay, 1 Star. 43. 
 
 (2) Ante, 631. 
 
 (5) And see 21 Jac. 1. c.l9. s. 9. 
 49G.3. C.121. S.2. 
 
 (4) The first part of this section 
 follows nearly the 21 Jac, 1. c. 19. 
 
 5.9.
 
 Sect. 4.] 
 
 ACT OF BANKRUPTCY. 
 
 693 
 
 his debt, except in respect of any execution or extent 
 served and levied hy seizure upon, or any mortgage of, or 
 lien upon, any part of the bankrupt's property before the 
 bankruptcy. And no creditor, though for a valuable con- 
 sideration, who shall sue out execution upon any judgment 
 obtained by default, confession, or nil dicit, shall avail 
 himself of such execution to the prejudice of other fair cre- 
 ditors, but shall be paid rateable with the other creditors. 
 
 The last part of the above section is adopted from the 
 Irish statute of the 1 1 & 12 G.3. c. 8. s. 5. ; and is also an 
 extension of the provision of the 3 G. 4. c. 39. s. 2. & 3., 
 which declared all warrants of attorney and cognovits to be 
 void, as against assignees, unless they were filed within 
 twenty-one days after their execution. The new provision 
 seems a very wholesome one to prevent a fraudulent pre- 
 ference of a favourite creditor. 
 
 As an execution, in order to have any legal operation, 
 must (under the above section) be served and levied by 
 seizure, the writ being merely tested before the bankruptcy 
 is insufficient — or even being previously delivered to the 
 sheriff; for such delivery is not an execution of it. (1) So 
 an execution of the writ, by a delivery of the warrant to a 
 shopman of the trader as a special baihfF — though there 
 were no regular baiUffs in the county into which the writ 
 was issued — has been holden not to be a sufficient exe- 
 cution of the writ, so as to protect the property against the 
 claims of the assignees, by reason of the reputed owner- 
 ship. (2) But where the goods ai'e actually seized by the 
 sheriff bond Jide before the act of bankruptcy, that is 
 sufficient to render the execution valid. (3) 
 
 When the act of bankruptcy is by lying in prison, and 
 an execuiion is executed after the first arrest, though 
 before the act of bankruptcy is complete by lying in prison 
 
 Execu- 
 tions, Sfc. 
 
 unless levy 
 made be- 
 fore the 
 bank- 
 ruptcy. 
 Execution 
 on judg- 
 ment by 
 default or 
 confession 
 not to be 
 preferred. 
 
 Execution 
 merely 
 tested, or 
 delivered 
 to sheriff 
 before 
 bankrupt- 
 cy, insuffi- 
 cient. 
 Delivery 
 of warrant 
 to shop- 
 man of 
 bankrupt 
 not a suf- 
 ficient 
 execution. 
 
 Execution 
 levied 
 after ar- 
 rest, when 
 
 (1) Pkilfips V. Thompson, 3 Lev. 
 69. 191. Buj/lci/ V, Burning, 1 Lev. 
 1 73. Smallcombc v. Cross, 1 Ld. 
 R I'ol. 
 
 (2) Jackson v. Irvin. 2 Carap. 48. 
 
 (3) Cole V. Davies, 1 Ld.R.724. 
 
 Y Y 3
 
 691. 
 
 OF RELATION TO THE 
 
 CCh. 15'. 
 
 Execu- 
 tions, Sfc. 
 
 act of 
 bank- 
 ruptcy is 
 lying in 
 prison. 
 
 Wliere 
 the levy 
 and act of 
 bank- 
 ruptcy the 
 same day. 
 
 Whether 
 the crown 
 will be 
 preferred. 
 
 As to ope- 
 ration of 
 an extent. 
 
 the full time required by the statute, — it has been held, that 
 the execution is avoided, by relation to the first arrest. (1) 
 
 With respect to the validity of executions and attach- 
 ments against partners, where ojie of the partners has 
 previously committed an act of bankruptcy, the reader is 
 referred to the preceding chapter. 
 
 If the goods be seized by the sheriff the same day that 
 the party commits an act of bankruptcy, it is open to 
 inquire which had the priority ; and the validity of the 
 execution has been held to depend upon such priority. (2) 
 So, where the sheriff took possession, and the same day at 
 a later hour the bankrupt surrendered in discharge of his 
 bail, the execution has been holden valid. (3) But where 
 an extent of the Crcnan issues the same day that the assign- 
 ment of the bankrupt's effects is made to the assignees, in 
 this case, it has been held that the Cro'wn shall be pre- 
 ferred (4) ; — though it seems very doubtful now — since 
 the old maxim in law (of there being no fraction of a 
 day) has been broken in upon by many subsequent de- 
 cisions (5) — whether the Crown would really be preferred, 
 where the assignment was bond fide executed before the is- 
 suing of the extent. 
 
 An extent of the Crown binds the property of the king's 
 debtor from the te&te of the writ, or rather from the time 
 of \k\Q. Jiat ; for the writ, at whatever time it issues, may 
 always be tested the same date as the^«/, though it cannot 
 be tested before. (6) Therefore, if it is issued at any time 
 previous to the execution of the commissioners' assign- 
 ment — (before which the property is not legally out of the 
 bankrupt (7) ) — it will be preferred to the claim of the 
 assignees ; and this preference, it seems, will prevail as 
 
 {\'\Coppendalev.Bridgen,2V>\\xx. (5) Saundersonv. Gregg, 3 Star. 
 
 814.; but see ante, 79. 72. ; and see ante, 862, 
 
 (2) Sadh-r v. Leigh, 4 Camp. 197. (g) Rex v. Mann, Str. 749. West 
 
 (3) Thomas v. Dcsanges, 2 B. & on Extents, 5S. 
 
 A. 58G. (7) Q,ueen v. Arnold, 7 Vin. Ab. 
 
 (4) Rex V. Cnu)ij)lo)i, cit. 2 Ves. 104. 
 CO 5. Parker's llcp. 126.
 
 Sect. 5.] ACT OF BANKUUPTCY. Gdfl 
 
 well with respect to debts due to the bankrupt at the time Exccu- 
 of the teste, as with the bankrupt's ^00^5 (1) ; for the Crown ' 
 is not affected by the operation of the assignment, in relation 
 back to the act of bankruptcy. (2) And where goods were 
 seized under an extent, and the writ and inquisition returned 
 by the sheriff, — though the debtor becomes a bankrupt be- 
 fore the issuing of the liberate, the execution of the extent 
 is good (3) against the assignees. 
 
 If an extent is issued after the date of the bargain and Wlierc 
 sale of the bankrupt's lands, but before inrolment, it seems fgppgj f^ " 
 that the extent will be preferred to the bargain and sale ; bargain 
 for it has been held, that in hankru])tcy the inrolment does ^" ^^ ^' 
 not (as in other cases) relate back to the date of the bargain 
 and sale. (4) 
 
 For further information, as to the operation of extents, 
 and other process for the recovery of the king's debt, the 
 reader is referred to a former chapter (5), where the effect 
 of the assignment upon the process of the Crown has been 
 already fully considered. 
 
 Section V. 
 What is Notice of an act of Bankruptcy. 
 
 It will have been observed in the progress of this inquiry, 
 as to the effect of the relation to the act of bankruptcy, 
 that (with the exception of purchases made more than 
 twelve calendar months before the commission issues, and 
 process at the suit of the Crown) the validity of any dealing 
 or transaction with the bankrupt, under any of the fore- 
 going circumstances, depends entirely upon the person so 
 dealing with him having no hioidcdgc or notice that he had 
 
 (1) Ibid.; and see ante, Chap.XI. (3) Audley v. Halsey, Cro. Car. 
 Part 2. sect. 10. 148, Jones, 203. 
 
 (2) Aftorna/ General v. Capel, (4) Rex v. Hoj^per, West on 
 2 Str. 4S0.; and see 2 Str, 982. Extents, 149. ct seq. Christ. 533.; 
 4 T. R. 4 II . and see ante, page .349. 
 
 (5) Chap. Xl.^Parte. seel. 10, 
 
 Y y 4
 
 696 
 
 OF RELATION TO THE 
 
 CCh.16. 
 
 Notice. 
 
 How no- 
 tice for- 
 merly con- 
 sidered. 
 
 When the 
 issuing of 
 a commis- 
 sion to be 
 deemed 
 notice. 
 
 Corpora- 
 tion or 
 
 committed an act of bankruptcy. A most important branch 
 of the law of relation, therefore, remains to be considered, 
 viz. wliat amounts to notice of a previous act of bankruptcy- 
 sufficient to avoid a payment to, or a dealing with, the 
 bankrupt — which payment or dealing would otherwise- 
 have been good. 
 
 The notice^ which would deprive a party of the pro- 
 tection given him by former acts of parliament, has been 
 defined very differently in the various statutes ; some 
 confining it to actual kno'wledge {I) of an act of bankruptcy, 
 while others extended it to notice " of an act of bank- 
 ruptcy, or insolvency" (2), or of " bankruptcy, insolvency, 
 or stoppage of payment." (3) And by Sir Samuel Romilly's 
 acts it was Jiist declared, that the mere striking of a 
 docket (4) — and afterwards, that the issuing of a com- 
 mission only (5) — should amount to constructive notice of 
 an act of bankruptcy; — this last provision being in con- 
 formity with the old rule of law, namely, that the issuing of 
 a commission was a public act, of which all the world was 
 bound to take notice. (6) 
 
 But by section 83. of the new statute, the issuing of a com- 
 mission is only declared to be notice of a prior act of bank- 
 ruptcy (if an act of bankruptcy has been actually committed 
 before the issuing of the commission) — provided the adju- 
 dication of bankruptcy shall have been notified in the 
 London Gazette, and the person to be affected by such 
 notice may reasonably be presumed to have seen the same. 
 By section 85., also, if any accredited agent of any body 
 
 (1) 1 Jac. 1. c. 15. s. 14. 
 
 (2) 19G. 2. c. 19. S. 14. 
 (.3) 46 G. 5. C. 135. S. 1. 
 
 (4) Ibid. s. 3. 
 
 (5) 49 G. 3. C. 121. S. 2. 
 
 (6) Hitchcock v. Sedge wicfc, 
 'iVern. 156. Watkins v. Maimd, 
 5 Camp. 308.; but see Sowerby v. 
 Brooks, 4 B. & A. 523. in which 
 Lord C.J. Abbott very justly ob- 
 serves, that the words " understand 
 
 or known" in the statute 1 Jac. 1 . 
 c. 15. s. 14. (upon the construction 
 of which that case was decided) 
 must be construed according to 
 their ordinary and popular sense, 
 viz. an actual understanding or 
 knowledge, and not a knowledge 
 to be implied by force of law (from 
 the secret issuing of an unknown 
 commission) against the truth of 
 the fact.
 
 Sect. 5.] , ACT OF BANKRUPTCY. 697 
 
 corporate or public company shall have had notice of any Notice. 
 act of bankruptcy, the corporation or company shall be public 
 thereby deemed to have had such notice. company. 
 
 The wo//c^, as defined by the new statute (1), is simply How no- 
 " notice of a prior act of bankrtiptcy ,-" — and the only ^^^, speci- 
 constructive notice is the issuing of a cominissioti, provided act. 
 a previous act of bankruptcy has been actually committed, 
 and the adjudication has been notified in the Gazette, and 
 the person to be affected by the notice may reasonably be 
 presumed to have seen the same. 
 
 The only actual notice, therefore, that will now prejudice 
 a party, being confined to the act of bankru-ptci/, it becomes 
 immaterial to consider those cases, decided with reference to 
 the former statutes, and determining what would and what 
 would not amount to notice of insolvency (2), or stoppage 
 of payment. 
 
 When the act of bankruptcy consists in the execution As to no- 
 
 of a fraudulent deed, it has been determined that notice ^}^^ °^* 
 
 . . . traudulent 
 
 of the deed by a person, who is not a party to it, is not convey- 
 
 sufficient notice of the act of bankruptcy. (S) ^"*^^' 
 
 (1) See Sections 81, 82. 50. (3) Bead v. Ward, 7 Vin. il9. 
 
 (2) Anon. I Camp. 492. n. Bayly 
 V. Schqfieldy 2 M. & S. 338.
 
 698 
 
 CHAP. XVII. 
 
 OF SET-OFF. 
 
 Sect. 1. Of the Right of Set- off generally in Banhruptcy. 
 
 2. Consti-udion of the Term ''• Mutual Credit," and 
 
 herein of Cases of Trtist and Deposit. 
 
 3. As to joint and separate Dehls. 
 
 4. Set-q^f between particular Persons. 
 
 5. Set-off" on Bills and Notes. 
 
 6. Of an equitable Set-off. 
 
 7. Of the Mode of balancing the Accou)Us. 
 
 Provision 
 of the 
 new 
 statute. 
 
 Section I. 
 Of the Right of Set-off generally in Banhuptcy. 
 
 13y the 50//i section of the new act it is provided, that 
 where there has been mutual credit given by the bankrupt, 
 and any other person ; or where there are mutual debts 
 between the bankrupt and any other person, the commis- 
 sioners shall state the account between them, and one debt 
 or demand may be set off against another, notwithstanding 
 any prior act of bankruptcy committed by the bankrupt 
 before the credit given, or the debt contracted by him ; 
 and what shall appear to be due on either side on the 
 balance of the account shall be claimed or paid on either 
 side respectively ; and every debt or demand, made prove- 
 able by the statute against the estate of the bankrupt, may 
 also be set off in manner aforesaid against such estate, 
 provided that the person claiming the benefit of such set-off 
 had not, when such credit was given, notice of an act of 
 bankruptcy committed by the bankrupt.
 
 Sect. 1.] or SET-OFF. 699 
 
 This section has consolidated the provisions of the 5 G. 2. Hight of. 
 c. 30. s. 28. and the 46 G. 3. c. 135. s. 3. ; but it has also AlterT"" 
 made some alterations in the enactments of those statutes, ations in 
 which it may be as well in the first place to notice. Firsts the i^ 
 credit need not now be given (as by the 46 G. 3. c. 135.) 
 two months before the date of the commission ; therefore, 
 the accounts may now be taken down to the date of the 
 commission. (1 ) Secondly, the notice, by which the party is 
 to be affected, is confined simply to notice of an act of bank- 
 ruptcy ; and it is now, therefore, immaterial to inquire 
 whether the party had notice that the bankrupt was insol- 
 vent, or had stopped payment. Thirdly, the statute de- 
 clares that every debt or demand, ijohich may he proved, may 
 also be set off against the bankrupt's estate. Consequently 
 all those cases (2), which have been decided not to be 
 within the provision as to mutual credit, because the debt 
 was contingent, would now meet with a different decision ; 
 as such debts may now be proved under t\\e. 56th section 
 of the new statute. But, with this exception, it does not 
 appear that there is any provision in the new statute to 
 constitute a case of mutual credit, which was not so be- 
 fore. (3) And as the accounts may, also, now be taken 
 down to the date of the commission, provided the party 
 had no notice of an act of bankruptcy when the ciedit was 
 given, he will not now be deprived (as he was before the 
 statute) (4) of his right to retain a payment made to him 
 by the bankrupt after an act of bankruptcy, for the purpose 
 of taking up bills not due, but which he has made himself 
 liable to pay when due, for the bankrupt's accommodation. 
 
 The right of set-off in Bankruptcy did not, as has been As to 
 frequently supposed, originate in the statute law; but was sj^fo^.*^^ 
 
 (1) See Sout/nvood v. Taylor, 301. Sampson v. Burton, 2 B. & 
 1 B. & A. 471. as to the effect of B. 89. Dobson v. Lockhart, 5T. 
 the 46 G. 3. R. 153. 
 
 (2) Ex parte Groovie, 1 Atk. (3) Eden, 184. 
 
 115. Hancock v. Enlwistle, 5 T. (4) Tamplin v. Biggins, 2 C-dn}[). 
 11. 455. Ex parte Whiilakcr, J Robc, 51-'.
 
 700 
 
 OF SET-OFK. 
 
 [Ch.17. 
 
 Right of. 
 
 more ex- 
 tensive in 
 bank- 
 ruptcy 
 than under 
 the gene- 
 ral sta- 
 tutes. 
 
 (before any interference of the legislature) adopted in prac- 
 tice by the courts of law, which permitted a creditor to set 
 off his debt against his bankrupt debtor, and to pay over 
 or prove the balance, as the case might happen to be. (1) 
 
 And this remedy or right of set-off of the creditor of 
 a bankrupt is more comprehensive and effectual, than the 
 general law of set-off under the statutes of the 2 G. 2. c. 22., 
 and 8 G. 2. c. 24. — in the construction of which, indeed, 
 doubts were formerly entertained whether those statutes 
 could be extended to assignees under a commission of 
 bankruptcy (2), on the ground that there was no mutual 
 debt between the assignees of a bankrupt and the creditor. 
 But, though the right of set-off in bankruptcy is perfectly 
 distinct and independent from that given by the general 
 statutes of set-off, yet the latter are held now to extend to 
 actions by assignees, concurrently with the provision of the 
 bankrupt law as to cases of mutual credit. (3) It is not, 
 however, intended to discuss every case that has been de- 
 cided under the general statutes of set-off, but only those 
 in which any point of bankruptcy has been agitated in the 
 course of the decision. 
 
 (I) Anon. 1 Mod. 215. Chap- 
 man V. Derby, 2Vern. 117.; and 
 see 1 Christ. B. L. 279. 499. 
 1 Goodinge B. L. 190. The first 
 statute that took notice of the 
 right was the 4&5Ann. c. 17. 
 which was continued tor five years 
 by the 7 Ann. c. 25. s. 4. This last 
 Stat, was re-enacted with some va- 
 riation by the 5 G. 1. c. 24., which, 
 also, was but a temporary act ; and 
 after its expiration, a similar but 
 
 more effectual provision relative to 
 mutual debts and credits was in- 
 corporated in the 5 G. 2. c. 30. 
 s. 28. Next came the additional 
 provision of the 46 G. 3. ; which 
 last provision, together with that 
 of the 5 G. 2. seem to have formed 
 the ground-work for the enactment 
 in the present statute. 
 
 (2) Ryall V. Larkin, 1 Wils. 1 55. 
 
 (5) Ridout V. Broiigh, Cowp. 
 133. Lock v. Bennet, 2 Atk. 48.
 
 Sect. 2.] OF SET-OFF. 701 
 
 Section II. 
 
 Construction of the Term " Mutual Credit,^* and herein of 
 Cases of Trust and Deposit. 
 
 The above enactment of the new statute, we perceive, As to con- 
 
 (in accordance with that of the 5 G.2. c. 30. s. 28.) relates «tr"f''o" 
 ^ ' ot the term 
 
 not only to mutual debts, but to mutual credits. There are " mutual 
 
 many cases, therefore, to which a set-off may be extended ^'■^'^*^' 
 
 where an action would not lie, and where a court of equity 
 
 even could not upon a bill decree an account. (1) The 
 
 statute, also, is not to be construed as confined to dealings 
 
 in trade only, or to cases where there are mutual running 
 
 accounts ; for it is but natural justice and equity, that in 
 
 all cases of mutual credit, only the balance shall be paid. (2) 
 
 The term " mutual credit" has, indeed, always received 
 
 from the courts a very liberal construction, and has likewise 
 
 not been confined merely to pecuniary demands ; for, as 
 
 Lord Hardwicke observed, it would be hard where a man 
 
 has a debt due from the bankrupt — and has at the same 
 
 time goods of a bankrupt in his hands, which cannot be got 
 
 from him without the assistance of law or equity — that the 
 
 assignees should take them from him without satisfying his 
 
 whole debt. (3) This observation, however, must be con- Asapplic- 
 
 fined to a case, where a party has (either by usage, custom, ^ble to a 
 
 or contract) a lien for his general balance on goods of a x^^x^ lifn' 
 
 bankrupt deposited with him — or, where the credit given o^" where 
 
 by the delivery of the property must in its nature terminate must'ter-' 
 
 in a debt. (4) The right oi set-off \s, indeed, aX cominon minatein 
 
 law always incident to the right of lien ; but the amount ^ 
 
 of the set-off will depend upon the nature and extent of the 
 
 lien. Thus, a Factor, having by law a lien for his general Factor. 
 
 (l) Ex parte Deeze, 1 Atk. 228. (2) Lanesborough v. JoneSy I P. 
 French v. Fenn, C. B. L. 554. At- Wms. 325. 
 hnson v. Elliott, 7 T. R. 578. (5) 1 Atk. 228. 
 
 (4) Rose V. Harty 8 Taunt. 499.
 
 702 OF SET-OFF. [Ch. 17. 
 
 Mutual balance, will have a ri(>ht to set off the wJiole of his debt due 
 ^ ' from the bankrupt; and (in his case) not only by virtue of 
 
 such general lien, but also by reason that the goods de- 
 livered to him were delivered for the purpose of sale, and 
 therefore constituted such a credit as must terminate in a 
 
 Fuller. debt. But a Fuller or a Miller, who have only a particular 
 Miller. . ' - r 
 
 lien, and to whom the cloths and the corn are delivered, 
 
 not for the purposes of sale, but merely to be respectively 
 dressed and ground — a delivery, consequently, which is 
 not such a credit as must terminate in a debt — have neither 
 of them a right of set-ofF, beyond the amount of their re- 
 spective charges for their labour bestowed on the specijic 
 goods remaining in their possession. They have, therefore, 
 not a right of set-ofF under the present, or indeed under 
 any of the former statutes relating to bankrupts ; for the 
 term " mutual credit" cannot be extended (1) to a case of 
 this description. 
 
 The above observation, indeed, of Lord Hardwicke in 
 Ex parte Deeze, has been commented upon in many de- 
 cisions, as if it was applicable to every case of deposit or 
 mutual trust, whatever may be the object or purpose of the 
 deposit or trust. But Lord Chief Justice Gibbs has clearly 
 shown in the above-mentioned case of Rose v. Hart, that 
 though something more is meant by the term mutual credit 
 than the words mutual debt import, — yet as the statute says 
 that upon stating the account one debt may be set against 
 another, this implies that the legislature meant such credits 
 only as must in their nature terminate in debts. As when a 
 debt is due from one party, and credit is given by him to 
 the other for a sum of money payable at a future day, and 
 which will the7i become a debt — or where there is a debt 
 on one side, and a delivery of property with directions to 
 turn it into money, on the other ; — in such cases, the credit 
 given by the delivery of the property must in its nature 
 terminate in a debt ; the balance will be taken on the two 
 
 (1) Rose V. Hart, 8 Taunt. 499.
 
 Sect. 2. J OF SF/r-oFF. 70S 
 
 debts, and the words of the statute will in all respects be Mutual 
 complied with. But where there is a mere deposit of pro- 
 
 perty, without any authority to turn it into money, no debt Case of 
 can ever arise out of it ; and, therefore, it is not a credit ""^^'j^ ^~ 
 within the meaning of the statute. This principle, his 
 Lordship says, will support all the cases that have been 
 determined on the subject; that is, all those cases in which 
 there was no evidence of the right of a lien for the general 
 balance. 
 
 The general right of lic7i depends upon totally different Distinc- 
 principles from the doctrine of set-off i7i Bankruptcy — t'^^enl' 
 though in many of the reported cases it is not very clear, and set-off. 
 whether the determination proceeded in respect of the set- 
 off, or the lien. Where the creditor is entitled to a general 
 lien, then he may, independently of any statute as to set-off 
 or mutual credit, retain the goods in his possession until he 
 has been satisfied his whole debt. As where a packer had Packer, 
 goods of the bankrupt's in his hands, and there was evi- 
 dence of a custom that packers had a general lien upon all 
 goods in their possession, it was decided, that he might re- 
 tain the goods for the whole of his demand. (1) But in the Miller, 
 case of the miller before mentioned, who had corn and 
 flour of the bankrupt's in his possession, and where there 
 was no evidence of any custom in the trade entitling him 
 to a ge?ieral lien, he was only allowed to retain for the price 
 of grinding the specific corn. (2) These cases, therefore, 
 seem to establish the position that, unless on the ground of 
 usage or positive agreement, a depositary of goods for other 
 
 (1) Ex parte Z)^<?z^, lAtk. 228. ment of the real ground of his 
 
 This evidence of the custom docs decision, have been tlie cause, per- 
 
 not appear in the report of the haps, of their receiving in subse- 
 
 case itself; but the ("act was so qnent cases somewhat too great a 
 
 stated by Lord Hardwicke in the latitude of construction. See an 
 
 subsequent case of Ex parte Od- able analysis of all the cases on this 
 
 enden, when he was pressed with subject in Eden's B. L. 179. et 
 
 his former decision in this case. seq. 
 
 And these general observations of (2) Ex parte Ockenden, 1 Atk. 
 
 his, therefore, in Ex parte Deeze, 254. 
 being unaccompanied by any state-
 
 704. 
 
 OF SET-OFF. 
 
 [Ch. 17. 
 
 Mutual 
 credit. 
 
 Cases of 
 trust. 
 
 purposes than that of sale has no right under the parti- 
 cular provision in the new statute as to mutual credit^ to set 
 off against the value of such goods the whole of a debt due 
 from the bankrupt to himself. 
 
 A trust, however, between two parties, where the object 
 of the trust was the sale of goods, and one party was 
 indebted to the other on another account, has been decided 
 to be a mutual credit within the former statutes. Thus, 
 where three persons joined in an adventure to buy and 
 sell pearls, one of whom was to advance the money and 
 to sell the pearls, but the profit and loss was to be di- 
 vided between the three ; — one of the parties becoming 
 bankrupt, the party (who was to sell the pearls) was 
 allowed to set off a debt due to him from the bankrupt, 
 in an action commenced against him by the assignees, 
 against the third share of the pearls belonging to the bank- 
 rupt, — although the pearls were not sold, nor the produce 
 received, until after the bankruptcy. ( 1 ) 
 
 So where A. purchased of B. a parcel of goods, and 
 afterwards a second parcel, both at six months' credit, 
 and when the first sum became due, lodged in the hands 
 of B. a bill of exchange for a larger amount than the 
 value of the goods, in order to pay what then remained 
 due in respect of ihejirst parcel, B. engaging to return the 
 overplus when the bill should be paid — it being understood 
 that this deposit was not a general deposit to answer both 
 demands, but for the specific purpose of securing only the 
 remainder of the value of ihejirst parcel — B. received the 
 amount of the bill, and then A. became bankrupt, not 
 having paid for the second parcel : — upon an action brought 
 by A.'s assignees for the surplus of the bill, it was held, 
 that B. might retain it to satisfy his demands on A. for the 
 second parcel, — Lord Kenyon observing that he agreed with 
 the doctrine, that where there is a trust between both 
 
 (1) French v. Fenn, C.B.L. 536.
 
 Sect. 2.] OF SET-OFF. 705 
 
 parties, there is a mutual credit ; and that justice required Mutual 
 that the whole account on both sides should be stated, and ' 
 
 that the balance should be the only thing to constitute the 
 debt.(l) 
 
 So, also, where a principal eyitnisted his broker with a Insurance 
 policy of insurance to receive an average loss under it, and ^^' 
 then became a bankrupt — and the broker afterwards re- 
 ceived the average loss, — he was allowed to set off several 
 sums of money due to him from the bankrupt for pre- 
 miums, &c. against the amount he received upon the policy 
 after the bankruptcy ; for the average loss was held to be 
 a debt due before the bankruptcy, though not ascertained 
 till afterwards. (2) 
 
 In another case, A. (a merchant) employed B. (a hroler) 
 to effect policies and sell goods, and trusted him with the 
 possession of the policies and the goods ; A. being indebted 
 to B. for premiums of insurance, and having obtained an 
 advance of money upon a pledge of goods placed in B.'s 
 hands for sale, but not on those goods to the exclusion of 
 A.'s general credit, became bankrupt : afterwards a loss 
 happened on one of the policies, and B. received it from 
 the underwriters ; — this was decided to be a case of mutual 
 credit, and that B. might retain the sum received for the 
 loss, not only in liquidation of the balance due for pre- 
 miums, but also of his advances — Lord Chief Justice 
 Gibbs (who tried the case) deciding it on the ground, that 
 the bankrupts had trusted the defendants with the pos- 
 session of goods and of policies of insurance, and that the 
 defendants had trusted the bankrupts with the money ad- 
 vanced, and the premiums paid for them on the policies ; 
 and that the general principle was, that wherever each 
 party has trusted the other with the possession of value, 
 the assignees of either party (in case of his bankruptcy) can 
 
 (1) Atkinson v. Elliott, 7T. R. (2) Whitehead v. Vaughan, C.B. 
 378.; but see Key \. Flint, post, L. 566. Parker v. Carter, ibid. 
 708. 567. 
 
 Z Z
 
 706 
 
 OF SET-OFF, 
 
 [Ch. 17. 
 
 Mutual 
 credit.. 
 
 Accept- 
 ance not 
 due till 
 after bank- 
 ruptcy. 
 
 only withdraw that value from the other, on the terms of 
 paying what is due between them. (1) 
 
 A sum of money, also, payable after the bankruptcy at 
 a future day, though not in strictness a mutual debt, is 
 held to be within the meaning of the term " mutual 
 credit." (2) Thus, where A. lent his acceptance to the 
 bankrupts, which did not become due till after the act of 
 bankruptcy, and was then outstanding in the hands of third 
 persons — and A. paid the amount after the commission 
 issued, and before an action was brought against him by 
 the assignees for a debt owing by him to the bankrupt; — it 
 was holden, that he was entitled to set off the amount of 
 such payment under the words " mutual credit^ (3) So, 
 where certain bankers had discounted bills of exchange 
 for the bankrupt, giving him credit for their value in his 
 account — and while they were still running, struck a 
 balance, by which they admitted themselves indebted to 
 the bankrupt — and after his bankruptcy the bills were dis- 
 honoured ; — it was held, that in an action by the assignees 
 for the balance admitted to be due before the bankruptcy, 
 the bankers had a right to set off the amount of the dis- 
 honoured bills. (4) 
 
 In all these cases it will be observed, that what was 
 allowed as a mutual credit was of such a nature, as must 
 terminate in a cross debt. Thus in French v. Fenn, there 
 was a debt due from one party to the other, and one party 
 was entrusted by the other with his share in the pearls for 
 sale, which (when sold) would of course constitute a cross 
 debt in respect of the proceeds. So in Whitehead v. Vaughan 
 and Olive v. Smith, the bankrupts were indebted to the 
 defendants, and delivered policies of insurance to them to 
 collect losses, which (when collected) would make the de- 
 fendants their debtors for the amount. And in Smith v. 
 
 (1) Olive V. Smith, 5 Taunt. 56. 
 
 (2) Ex parte Prescott, 1 Atk. 
 230. 
 
 (3) Smith V. Hodson, 4 T. R. 2 1 1 . 
 
 Ex parte Boyle, C. B. L. 542. Ex 
 parte Wagstaff, 13 Ves. 65. 
 
 (4) Arbouin v. Tritton, 1 Holt 
 N.P.C.408.
 
 Sect. 2.] OF SET-OFF. 707 
 
 Hodso7i, the defendant had entrusted the bankrupt with Mutual 
 
 credit 
 
 his acceptance which he was liable to pay, and which, ' 
 
 (when paid) would create a debt from the bankrupt to him 
 for the amount, , 
 
 There is another case under this head, which seems to have Construc- 
 gone further than any of the preceding, inasmuch as the de- ^.^^y of " 
 livery of the goods to constitute the debt was only a con&truc- goods. 
 live delivery to the party dealing with the bankrupt, while in 
 all the other cases, the property had been either actually de- 
 livered, or was already in the possession of the party. J. S. 
 being desirous of making a shipment for his own risk and 
 advantage, but not in his own name, represented to the 
 merchants (through whom the shipment was to be made) 
 that the goods were the property of A., and shipped on 
 his account — and A. accordingly (by the desire of J. S.) 
 wrote to the merchants, stating the fact to be so, and di- 
 recting them to insure, and advance money to J. S. on the 
 goods, which was done : — J. S. at this time was largely in- 
 debted to A-, and afterwards became bankrupt ; — under 
 these circumstances it was held, that this was a credit given 
 to A. by J. S. by the delivery of goods in its nature likely 
 to terminate in a debt; and that A. was not only entitled 
 to recover the proceeds of the shipment from the merchants, 
 but to set off against those proceeds the amount of the debt 
 due to him from the bankrupt. (1) 
 
 But where a bailee is entrusted with property of a bank- Bailee for 
 rupt for a special and limited piurpose^ then (like the case of ^ ^P^^^^^^ 
 the miller and the fuller who have no general lien) such 
 a transaction does not form a case of mutual credit within 
 the meaning of the statute. As where the bankrupts de- 
 posited a bill of exchange with a creditor, for the specific 
 purpose of I'aising money on it, and not as a satisfaction of 
 his debt ; — it was held, that the creditor (having only ad- 
 vanced part of the amount) could not, in an action of trover 
 by the assignees, retain the bill for his general balance 
 
 (l) Eaxum v. Cato, 5 B. &' A. sm. 
 z z 2
 
 708 
 
 OF SF,T-OFF. 
 
 [Ch. 17. 
 
 Mutual 
 credit. 
 
 Accept- 
 ance in 
 hands of 
 third per- 
 son. 
 
 previously due to liim from the bankrupts, but only for 
 the money actually advanced by him on the bill. (1) And 
 Lord Eldon, when the same case came afterwards before 
 him on petition, said, that it was contrary to natural equity, 
 that a creditor who had made advances on the security of 
 a bill of exchange deposited with him for a special pur- 
 pose, and who had undertaken to receive the amount 
 when due, and return the surplus, should set off advances 
 prioi- to the transaction against a demand by the assignees 
 for the bill. (2) 
 
 It is not necessary, in order to constitute a case of 
 mutual credit within the meaning of the statute, that the 
 parties intended to trust each other in the transaction ; for 
 if a bill of exchange, which is accepted by the bankrupt, 
 be sent out into the world, credit is then given to the ac- 
 ceptor by every person who takes the bill. (3) Thus, 
 where a bill accepted by A. got into the hands of B., and 
 B. bought goods of A., — it was holden that there was a 
 mutual credit between A. and B., although A. did not know 
 that the bill was in B.'s hands. (4) 
 
 The debt 
 due, or 
 credit 
 given, 
 must be 
 in the par- 
 ty's own 
 right. 
 
 Section III. 
 
 As (o Joint and separate Debts. 
 (And see post, Section VI.) 
 
 In order to establish a clear right of set-off, it is essential 
 that the debt claimed to be due to either party, or the 
 credit given, should be due to or given by him in his own 
 right, and not in the right of another person ; for, though 
 
 (1) Key V. Flint, 8 Taunt. 21. 
 1 Moore, 451. 
 
 (2) Ex parte Flint, 1 Swanst.30. 
 This decision certainly appears 
 somewhat at variance with that of 
 Atkinson v. Elliott, ante, 705., 
 though Lord C. J. Dallas thought 
 there was a distinction between 
 
 the two cases, inasmuch as the 
 form of action in that case was 
 assumpsit, and in this trover. 
 
 (5) Per BuUer J. 3 T. R. 508. 
 (note). 
 
 (4) Hankey v. Smith, ibid. ; and 
 see Sheldon v. Rothschild, 8 Taunt. 
 
 1 56'.
 
 Sect. 3.] OF SET-OFF. 709 
 
 the statute is intended to give a certain extension to the Joint and 
 
 right of set-ofF at law, yet it does not take away the ne- ^J^^il"^ '^ 
 
 cessity of what was before required in these cases, viz. a 
 
 strict mutuality. Therefore, there can be no set-off between 
 
 joint and separate debts. This principle, indeed, has always As to joint 
 
 prevailed at law ; and thoufijh in bankruptcy such a set-off ^"^ ^fP'*^- 
 1 , . ^ I • I , .^ ■ I'lte debts . 
 
 has been in some cases formerly permitted (1 j, yet it seems 
 
 to be now established, that (unless there is a special agree- 
 ment between the parties to the contrary) the same rule 
 in this respect ought to govern set-off in bankruptcy, as 
 well as set-off at law. (2) Thus, where A. had a joint de- 
 mand against B. and C, who were also joint creditors of 
 A. — and B. and C. having dissolved their partnership, B. 
 (by a letter addressed to A.) made hixnstA^ separately liable 
 to A. on account of the joint demand of A. against himself 
 and C. ; — Lord Eldon held, that B. was under these cir- 
 cumstances not entitled to set off against A.'s demand 
 (though originally joint) the joint debt due from A. to B. 
 and C. ; for that, when B. made himself separately liable 
 to A., his doing so did not make the joint debt, due from 
 A. to B. and C, a separate debt to B. (3) And the same 
 rule, that a joint debt cannot be set off against a separate 
 demand, prevails also in equity, as well as in bankruptcy 
 and at law. [A) 
 
 But, where xs. joint debt has — by the death of all the per- Where 
 
 sons but one to whom it was iointly due — become a debt to •J*''"'' ^ 
 
 J J ^ hecomes 
 
 the survivor, it has been held under the statutes of set-ofF by the 
 
 at law, that such a debt may then be considered as a se- .^ °^ 
 ' •' . parties a 
 
 parate debt, and may be set off against a debt due from debt due 
 
 such survivor in his own rijrht. (5) And, in like manner, a ^^ a^.sole 
 
 survivor, 
 defendant may set off a debt due to \\\Ki from the plaintiff 
 
 as surviving partner^ against a debt due from himself to the 
 
 (1) Ex parte Edwards, 1 Atk. (.3) Ex parte Ross, Buck. 125. 
 100. Exparte Qza'«/e?i, 3Ves.248. (4) Addis v. Knight, 2 Meriv. 
 
 (2) Ex parte Christie, 10 Ves. 117. 
 
 1 05. Ex ])arte Twogood, 1 1 Ves. ( 5) Slipper v . S/idsionc, 5 T. K . 
 517.; and bcc Doe v. Daniloii, 403, 
 
 Z Z 3
 
 no 
 
 OF SET-OFF. 
 
 [Ch. 17. 
 
 Joint and 
 
 separate 
 
 debts. 
 
 Joint and 
 
 several 
 
 bond. 
 
 Where 
 the name 
 of one 
 partner 
 only ap- 
 pears in 
 the bu- 
 siness. 
 
 Note in- 
 dorsed 
 by joint 
 debtors to 
 another 
 firm, in 
 which 
 some of 
 them were 
 partners. 
 
 Statute 
 does not 
 apply 
 where 
 some part- 
 ners only 
 of a firm 
 become 
 bankrupt. 
 
 plaintiff in his own right. (1) So a joint and several bond 
 may be set off against only one of the obligors who exe- 
 cuted it ; for the bond, being joint and several^ became the 
 separate debt of both. (2) So, in an action by several 
 partners, where the name of one only appeared in the 
 business, the defendant was allowed to set off a debt due 
 to him from that one partner^ — the other partners having 
 (as Lord Kenyon expressed it) held out false colours to the 
 world, by permitting that one partner to appear as the 
 sole owner. (3) So also, where the defendants gave their 
 bankers a note on account of a demand which the bankers 
 made on them, but which afterwards proved to be much 
 less than the sum for which the note was given — and the 
 bankers indorsed the note to another firm, which was 
 formed of some of the partners of the hanking house — and 
 the holders brought an action against the defendants ; — 
 the defendants were held entitled to set off a debt due to 
 them from the bankers ; for the parties who brought the 
 action (being partners in the banking house) could not, as 
 hetvoeen themselves, divert the note to another purpose, and 
 leave the whole of the defendants' debt outstanding. (4) 
 
 As the statute also only relates to mutual credits be- 
 tween hankrupts and other persons, it will not apply to a 
 case where only some partners of a firm are bankrupts. 
 Consequently, though an action be brought by the as- 
 signees of the bankrupt partners together with the solvent 
 partner against a defendant on account of a partnership 
 debt, the defendant, if he is not entitled to a set off at law, 
 is not entitled under the foregoing enactment as to mutual 
 credit; for in such a case, if any credit existed, it was 
 between the hankrupts together with a solvent person on 
 the one side, and the defendant on the other. Therefore, 
 where three partners, A. B. and C, delivered bills to D. 
 
 {\) French v. Androdc, G T. R. 
 582. 
 
 (2) Fletcher v. Dyche, 2 T. R. 32. 
 (5) Stacey v. Ross, 2 Esp. 20'9. 
 8 
 
 (4) Pidler V. Roe, Peake, 197.; 
 and see post, as to equitable set- 
 ofl:
 
 Sect. 4.] OF SKT-OFF. 711 
 
 for a special purpose, and A. and B. became bankrupts, — •^'^''«' and 
 it was held, that in an action brought by their assignees ''debts^ ^ 
 
 (together with the solvent partner C.) against D., for the 
 
 proceeds of the bills, the defendant could not set off 
 against such claim a debt due to him from A. B. and 
 C.(I} 
 
 Section IV. 
 
 Of Set-off' helxoeen j^articular Persons. 
 
 A debt, due to an exeaitor in his representative character, Executors 
 cannot be set oif against a debt due from him on his pn- 
 vate account. (2) And though the executor also happen to 
 be residuary legatee, such a set-off will not be allowed; for 
 these are debts in different rights, and there is no mutual 
 credit. (3) But, where an executor had furnished money 
 and goods to a legatee, who became bankrupt — upon which 
 the executor filed a bill against the assignees for an allow- 
 ance to be made to him out of the legacy, on account of the 
 money which the bankrupt owed him, — the Court decided, 
 that a legacy due from an executor (who admits assets) is 
 in equity a debt due from the executor, and in this case 
 allowed the set-off. (4) So, an executor may set off a debt 
 due to the testator against a legacy bequeathed to the 
 bankrupt; for when the assignees bring their bill against 
 the executor, they can only stand in the place of the 
 legatee, and can have no better right than what the legatee 
 himself possessed. (5) 
 
 (1) Staniforth v. Fellowes, by him against a debt accruing to 
 1 Marsh. 184.; and see Thomason the executor. See also Shipman 
 V. Frere, 10 East, 418. v. Thomas, 1 Esp. 240. Bull. N. P. 
 
 (2) Bishop V. Church, 3 Atk. 180. 
 
 691. ; and see Willes, 103. for cases (3) Ibid. 
 
 which determine, that a debt, ac (4) Jeff's v. Wood, '^ P. Wms. 
 
 cruing to a party in the lifetime 128. 
 
 of the testator, cannot be set off (5) Ibid. 
 
 z z 4
 
 712 
 
 Farticular 
 persons. 
 
 Trustees. 
 
 OF SET-OFF. 
 
 [Ch. 17. 
 
 1 
 
 Directors 
 of a pub- 
 lic com- 
 pany. 
 
 A debt due from the bankrupt to a trustee, on account of 
 his trust, cannot be set off by the trustee against a debt due 
 from him in his o\son right. Therefore, where third persons 
 holding the acceptance of a trader (who was known to be 
 then in bad circumstances) agreed with the defendants, as a 
 mode of covering the amount of the bill, that it should be 
 indorsed to them, and that they should purchase goods of 
 the trader to be paid for by a bill at three months' date, or 
 made equal to cash in three months (before which time the 
 trader's acceptance v.ould be due) — but without commu- 
 nicating to the trader that they were the holders of his 
 acceptance — and the goods were purchased by the de- 
 fendants according to the mode agreed upon ; — it was 
 held, that the trader having become bankrupt, and his 
 assignees having brought assumpsit to recover the value of 
 the goods sold and delivered to the defendants, the latter 
 could not set off the bankrupt's acceptance ; as they did 
 not hold it in their omi right, but in effect as trustees for 
 the persons who had indorsed it to them for the above-men- 
 tioned purpose. (1) This case was decided on the ground 
 of fraud, — and that the defendants were not the bond Jide 
 holders of the bill, but had lent themselves improperly 
 to the real owners, to obtain for the latter a right of set-off. 
 Where, however, a creditor buys goods of his debtor in 
 the ordinary mode of business, though the contract be to 
 pay for the goods in ready money, the creditor will then 
 not be prevented from setting off his debt against the price 
 of the goods. (2) If an action be commenced by a trustee 
 in right of his trust, the defendant may set off a debt due 
 to him from the cestui que trust. (3) 
 
 The directors, or trustees, of a public company incor- 
 porated by act of parliament, cannot set oflp a debt due to 
 them from the bankrupt for a loan of money before his 
 bankruptcy, against a demand made upon them by the 
 
 ( 1 ) Fair v. M' Ivor, 1 6 East, 1 30. 
 
 (2) Eland v. Karr, 1 East, 575. 
 
 (5) Bottomley v. Brook, Whitm. 
 B. L. 204. Rudge v. Birc/i, ibicL 
 Webster v. Scoles, ibid.
 
 Sect. -l-.] OF SET-OFF. 71S 
 
 assignees for the amount of the stock held by the bank- Particular 
 rupt, the loan not being made on the credit of the stock ; 1^ ^^^°^^' 
 for it was considered, that the bankrupt was indebted to 
 them upon the loan as private persons, and that the stock 
 was due to him from the company in their corporate 
 capacity : it was considered, also, that the company could 
 have no lien upon the stock, having no such special pro- 
 perty in it as ©ould give them a lien ; for they were vested 
 with the stock in their corporate capacity only, and for the 
 particular purposes directed by the act; but the specific 
 stock of each proprietor was vested in himself alone. (1) 
 But where there was an express bye-law subjecting the 
 stock of each member of a company to be distrained for 
 such debts as he should owe them, and the bankrupt was 
 indebted to them for a balance in his hands as their banker, 
 or cashier, — the company was allowed in this case to set 
 off the debt, against the stock and dividends belonging (2) 
 to tiie bankrupt. So, also, whei'e a director of a public 
 company assigned his salary and share to the company, in 
 order to secure a debt due from him to them on his private 
 account, and empowered the company to direct the treasurer 
 to retain his salaiy and dividends, and sell his shares for 
 the payment of the debt — but the power given to the com- 
 pany had not been exercised, and the shares still remained 
 in the director's name, — it was held, that though the 
 shares on his bankruptcy passed to his assignees, as being 
 in his order and disposition, yet that the company had a 
 right of set-off for the dividends and salary due to him at 
 his bankruptcy. (3) 
 
 A debt owing by the bankrupt to the "Joife, dum sola, can- Debt due 
 not be set off against a debt due from the husband, (it) ^^^^ ^he 
 And it has been decided also upon the general statute of wife, dum 
 
 set-off, that a debt due from the wife, dum sola, cannot be *'"'«> c^"- 
 ' ./ ' ' not be set 
 
 (1) Meglioruchi v. Royal Ex- (.3) Nelson v. London Assurance 
 change Asstirance Company, 1 Eq. Company, 2 Sim. & S. 292. 
 
 Ca. Ab. 9. (4) Ex parte Blagdcn, 2 Rose, 
 
 (2) Gibson v. HudsoiCs Bay 249. 19 Ves. 465. Payidon v. 
 Company, 1 Str. 645. IVat/ccr, B. N. P. 1 79.
 
 714 
 
 OF SET-OFF. 
 
 [Ch.17. 
 
 Particular 
 persons. 
 
 oft' in an 
 action by 
 or against 
 the hus- 
 band. 
 
 Legacy to 
 the wife. 
 
 Insurance 
 broker. 
 
 set off in an action brought by the husband alone — unless, 
 indeed, he has promised to pay the debt after marriage, 
 and thereby made it his own. (1) But where a legacy was 
 given to the wife of a bankrupt, and she died without 
 asserting any claim to it, — the Court held, that as at law a 
 legacy to the wife is a legacy to the husband (though 
 subject in equity to her right to a provision) — this legacy, 
 being discharged of that equity in consequence of her 
 death, would have become the absolute property of the 
 husband if there had been no bankruptcy : that, as against 
 the husband, the executor would have had a right to satisfy 
 the legacy, by writing off so much of the debts due from 
 the husband : and that he must have the same right against 
 the assignees. (2) And, in a subsequent case of this de- 
 scription, the executors were allowed to set off a debt due 
 from the bankrupt to the testator, against a moiety of a 
 legacy given to the wife — the other moiety being ordered 
 to be settled on the wife for life, with remainder to the 
 issue of the marriage. (3) 
 
 The right of a broker, who effects a policy of insurance, 
 to set off the money due for losses or returns of premium 
 against the claim of the assignees of the underwriter, de- 
 pends in a great measure upon the fact, whether or not the 
 broker receives a del credere commission — and whether he 
 effects the policy in his oiion name, or in that of his principal. 
 If a broker acting under a del credere commission effects 
 the policy in his ow)i name, the right of set-off is allowed ; 
 for a commission del credere being an absolute engagement 
 to the principal from the broker, and rendering him liable 
 at all events, places the broker himself in the nature of a 
 principal as to the underwriter, and clothes him with all 
 the rights of the principal, unless the latter steps in between 
 him and the underwriter. (4') And the same is also held 
 
 (1) Wood V. Akers, 2 Esp. 594. 
 
 (2) Ranking v. Barnard, 5 Mad. 
 2. 
 
 (5) Ex parte O'Farrall, 1 G. & 
 
 J. 34. ; but see Carr v. Taylor, 
 lOVes. 578. 
 
 (4) Grove v. Dubois, i T. R. 1 12. 
 Bizc V. Dickason, ibid. 287.
 
 Sect. 4.] OF SET-OFF. 715 
 
 under the general statutes of set-off". (1) But where the Particular 
 broker does not act under a del credere commission, lie is P ^^^°^^- 
 then not entitled to such right of set-off; for, in this case, 
 the losses or the returns of premium are a debt properly 
 due to the assured ; and the broker, even with respect to 
 the underwriter, can only be considered as an agent, whose 
 authority (by the bankruptcy of the underwriter) is virtually 
 countermanded and extinct. Therefore, where a broker 
 (without such a commission) was indebted to an under- 
 writer for premiums due upon policies subscribed by him 
 before his bankruptcy, he was held to be not entitled to 
 set off" afjainst the assignees of the underwriter returns of 
 premium due upon the arrival of ships, whether the ships 
 arrived before (2), or subsequent to the bankruptcy, (3) 
 The Court of Common Pleas in these two cases (contrary 
 to the opinion of the Court of King's Bench (4), which 
 considered the broker, as to a return of premium, a sort 
 of stakeholder between the underwriter and the assured) 
 treated the return of premium as a contingent debt, due 
 from the underwriter to the assured — and the broker, as 
 merely the agent of the underwriter to receive the premium 
 for him, and for nothing else — holding, therefore, that 
 the broker could not, after the underwriter's bankruptcy, 
 make himself the agent of the assignees, for the purpose of 
 detaining money to be paid by the underwriter to the 
 assured. (5) And even where the broker acts under a del 
 credere commission, yet if he discloses the name of his 
 principal to the underwriter, he will not then be entitled to 
 this right of set-off". (6) 
 
 A broker, however, may have the same right of set-off" by Broker's 
 virtue of a lien (7), as that which he possesses by virtue of rL'^pt of 
 
 (1) Weinholt v. Roberts, 2Csi\n^. (5) Per Mansfield C. J., 4 Taunt. 
 586. 544. 
 
 (2) Minettv. Forrester, 'i'Taxmt. (6) Koster v. Eason, 2 M. & S. 
 541. 112. Morris \. Cleasby, I M.&, 
 
 {5) Goldsckmidtv.Li/on,4Taunt. S. 576. 4 M. & S. 560. Peele v. 
 
 534. Nortkcote, "i Taunt. 478. 
 
 {4) Shee v. Clarkson, 12 East, (7) And see ante, 701. 
 507. 
 
 a lien.
 
 716 
 
 OF SliT-Ol'F. 
 
 LCh. 1 
 
 Particular 
 2)ersons. 
 
 Under- 
 writer. 
 
 a commission del credere — as where, for instance, he ac- 
 quires an interest by making advances to his principal on 
 the credit of a particular consignment of goods. There- 
 fore, where brokers (not acting under a commission del 
 credere) effected policies on account of their principal, but 
 in their own names, and accepted bills drawn on them on 
 account of goods consigned to them, which were lost before 
 their arrival, — it was held, that the brokers might set off the 
 amount of such losses, against the claim of the assignees of 
 the underwriter for the premiums due, in respect of his 
 subscription to the policies of insurance on the goods. So, 
 as we have already seen ( I ), a broker cntrjisled by his prin- 
 cipal with a policy to receive an average loss under it, 
 though he receive it after the bankruptcy of his principal, 
 has a right, by reason of his lien on the policy, to set off 
 money due to him from the bankrupt for premiums, against 
 the money he received from the underwriters (2) ; and that 
 the receipt of the average loss after the bankruptcy was 
 no objection to his right of set-off; as the debt was due to 
 the bankrupt before the bankruptcy, though not ascertained 
 till afterwards. And, indeed, in all cases o^ mutual trust and- 
 credit (as has been before observed) — where the trust or 
 credit must terminate in a debt — any other person, as well as 
 a broker, has a right of set-off under the statute, in respect 
 of a balance due to him from the bankrupt. (3) 
 
 With respect to the right of set-off by an under'writer 
 against the assured — it is now settled by the unanimous 
 decision of the twelve judges (though the point was shortly 
 before decided differently in the Common Pleas (4 ) ) — that 
 an underwriter may set off, against the assignees of the 
 assured, the amount of premiums due to him before the 
 bankruptcy, against a loss accruing after the bankruptcy. 
 The case was argued as one of nmtual credit under the 
 
 (1) Ante, 705. 
 
 (2) Whitehead v, Vaughan, ante, 
 705. 
 
 (.3) See ante, 706. 
 
 (4) Glennie v. Edmniuls, 4 Taunt. 
 
 i75.
 
 Sect. 4.] OF SF.T-OFF. 717 
 
 5 G. 2. c. 30. s. 28. ; but the decision of the Judges pro- Particular 
 ceeded on the equitable construction of the 19 G. 2. c. 32. ^ ^'"^°"^' 
 s. 2. (which is now incorporated in the 53d section of the 
 new act) enabling the assured, under a comniission of 
 bankrupt against an underwritei", to claim before the hap- 
 pening of a loss, and after a loss to prove and receive a di- 
 vidend. And the Judges were of opinion — that, as under 
 this statute the set-ofFwas to be allowed to the assured, in 
 the case of a bankrupt underwriter — so, by parity of reason- 
 ing, there ought to be the same allowance to the under- 
 writer, in the case of a bankrupt (1) assured. But an 
 underwriter cannot set off a general balance due to himself 
 from the broker, at the time of the adjustment of a loss, 
 against the claim of the assured. Therefore, where a 
 broker became bankrupt after the adjustment of a loss with 
 the underwriter, though he had upon that occasion struck 
 the underwriter's name out of the policy and the adjust- 
 ment, in consideration of the balance which he himself 
 owed the underwriter, — yet the latter was held to have no 
 right of set-ofF, in an action brought against him by the 
 assured, beyond that which was due to him for premiums 
 on the particular policy. (2) 
 
 For the same reason as applies to the case of a broker(3) — Factor. 
 so, where a. factor acts under a del credere commission, and 
 sells goods in his o'wn name, concealing the name of his 
 principal, the person dealing with him has a right to con- 
 sider him to all intents and purposes as the principal ; and 
 though the real principal may afterwards appear, and bring 
 an action upon that contract against the purchaser of the 
 goods, yet the purchaser may set off any claim he may 
 have against the factor, in answer to the demand of the 
 principal (4) ; and may also plead these facts specially, in 
 support of his right of set-ofF against the demand of the prin- 
 
 (1) Grahamv. Russell, ^'^dx%\i. (4) Rabone \. Williams, 7T. R. 
 561. 5M. &. S. 498. 360. in note, George v, Clagett, 
 
 (2) Todd V. Reed, 3 Star. \ 6. 7 T. R. 359. Escot v. Milward, 
 
 (3) Ante, 714. ibid. C. B. L. 378.
 
 718 
 
 OF SET-OFF. 
 
 [Ch. 17. 
 
 Particular cipal. (1) By the recent statute of the 6 G. 4. c. 94., which 
 p ersotis. ennbles a factor to pledge goods deposited with him by his 
 principal, the person (with whom any goods shall have been 
 so pledged) has a right of set-off against the owner, to the 
 amount of the money advanced upon the goods ; and the 
 real owner redeeming the goods is entitled, in case of the 
 bankruptcy of the factor, to set off (2) the amount paid by 
 him for their redemption, against any debt due from him to 
 the factor. 
 Banker. If a banJcer receives and pays money on account of a 
 
 bankrupt after notice of his bankruptcy, he cannot set off 
 the payments against the receipts, in an action by the 
 assignees. (3) 
 
 Indorsee 
 oi a bill. 
 
 Section V. 
 
 Of Set-off on Bills ajid Notes. 
 
 With respect to the right of an indorsee to set off a bill 
 of exchange, or promissory note, against the debt owing 
 by him to the bankrupt, a distinction is taken between a 
 bill indorsed i^re, and one indorsed after, the bankruptcy. 
 A bill indorsed before the bankruptcy, we have seen (4), can 
 be set off against a debt accruing from the indorsee to the 
 bankrupt after the indorsement ; for, though the bankrupt 
 might not know when the bill was indorsed to, or came to 
 the possession of the party, yet the bankrupt by sending a 
 bill into the world with his name upon it, gains a credit from 
 every person who takes it afterwards. But a bill indorsed 
 after the bankruptcy cannot be set off; for, notwithstanding 
 the debt (as against the bankrupt) may have existed before 
 the bankruptcy (5), it is not a debt due from him to the 
 
 (1) Can- V. Hinchlif, 4 B. & C. (3) Ver7io7i v. Hankei/, 2 T. R. 
 547. 113. 3Bro. 513. 
 
 (2) Section 6.; and see ante,462. (4) Ante, 708. 
 
 480. 15) Marsh v. Chwnbers, 2 Sir. 
 
 1234.
 
 Sect. 5.] OF SET-OFF. 719 
 
 same party as at the time of the bankruptcy ; and though it Sills and 
 is allowed to be proved, yet the right of proof is very dif- " 
 ferent from the right of set-ofF. By the former no new charge 
 is brought upon the estate; but that is not the case in the 
 latter instance ; and a creditor, it has been said, has no right 
 thus to vary the relation in which he stood to the bank- 
 rupt's estate at the time of the bankruptcy, by a transaction 
 ex post /ado with a third party, and thereby put himself in 
 a better situation than the rest of the bankrupt's cre- 
 ditors. ( 1 ) And even where a party, who had indorsed the 
 bill bcfo7-e the bankruptcy of the acceptor, was obliged to 
 take it up afterwards in consequence of the acceptor's 
 bankruptcy, Lord Loughborough held that he could not 
 set of' the bill against a debt due to the bankrupt's estate — 
 though he might j^rot;^ the amount under the commission. (2) 
 It is incumbent, also, on the indorsee to show that the in- 
 dorsement was made before the bankruptcy ; for a case of 
 set-ofFis in the nature of a cross action, in which the party 
 would be obliged to prove every thing necessary to sub- 
 stantiate his demand ; and the time, when the bill was 
 indorsed, would be a material fact in support of his case.(3) 
 Thus, in an action brought by the assignees of a country 
 banker, the defendant cannot set off cash notes payable 
 to bearer and issued by the bankrupt before his bank- 
 ruptcy, unless the defendant shows that such notes also 
 came to his hands before the bankruptcy. (4) But proof, 
 that notes to the amount of the set-ofF claimed came into 
 the defendant's hands three or four weeks before the bank- 
 ruptcy, is sufficient evidence for the jury to presume pos- 
 session of them, without actually identifying them at the 
 time of the bankruptcy. (5) 
 
 In a case of cross-acceptances, — in order to enable the Cross-ac- 
 holder of the bankrupt's acceptances to avail himself of '^^P^^"^^*- 
 
 (1) CuUen's B. L. 205.; and see (4) Ibid. 
 
 Evans v. Prosser, 3 T. R. 186. (5) Moore V. Wright, 2 Marsh. 
 
 (2) Ex parte Hale, 3 Ves. 304. 209. 
 
 (3) Lucas V. March, Barnes, 453. 
 Dickson V. Evans, 6 T. R. 57.
 
 720 OF SET-OFF. [Ch. 17. 
 
 Bills and tliem (in an action by the assignees against himself on his 
 notes^^ own acceptances) by way either of set-off or mutual credit, 
 he must most distinctly prove, either that the obligation on 
 himself to pay the bills so sought to be set off subsisted 
 before the bankruptcy, or that there was a mutual credit 
 created in the origin of the bills. (1) An acceptance, 
 though not due until after the bankruptcy of the drawer, 
 it has been already observed (2), may be set off against a 
 debt due from the acceptor to the drawer. (3) 
 Set-off" by "Where an agent of the bankrupt (being provided with 
 aeamst°'^ funds for that purpose) accepted bills drawn by the bank- 
 drawer, rupt, who paid them away to his creditors — and the holders 
 
 ce^^or had °^ ^^^ ^^^^^' ^^^^^ ^^^^ became due and before the act of 
 
 paid a bankruptcy, in order to relieve the acceptor from his 
 
 composi- responsibility to them, took from him a composition of 10^. 
 
 bills to the in the pound, and delivered up the bills to the acceptor; — 
 
 holders. jj. ^^g J^gij^ that as the bankrupt's estate was discharged 
 
 against any claim of the bill-holders by such composition, 
 
 the acceptor had a right to set off the full amount of the 
 
 bills against any claim of the assignees — the transaction 
 
 being considered, in law, a payment of the whole amount of 
 
 the bills by the acceptor, and a gift by the holders to the 
 
 acceptor of the difference between what was actually paid, 
 
 and the amount of the bills. (4) 
 
 Section VI, 
 Of an equitable Set-off. 
 
 As the Lord Chancellor in Bankruptcy exercises an 
 equitable^ as well as a /g-^a/ jurisdiction, he will extend that 
 jurisdiction to cases of set-off, that are not within the imme- 
 
 (1) Ouchterlony V. Easterly, (5) Ex parte Wagstaff, IsVes. 
 4 Taunt. 888. 65. 
 
 (2) Ante, 706. (4) Stonchouse v. Read, 3 B. & 
 
 C. GG9.
 
 Sect. 6.] OF SET-OFF. 721 
 
 diate operation of the statute, upon the same principle as Equitable. 
 
 where there are mutual demands between parties, which 
 
 cannot be made the subject of set-off at law, u court of 
 
 equity will frequently interpose between die parties upon 
 
 equitable principles, and determine what is justly due from 
 
 one party to the other. (1) As where a contract was Onanusu- 
 
 entered into, upon which one of the parties had taken usu- "^"^ ^'^"" 
 ^ ^ tract. 
 
 nous interest, — though a party to such a contract could 
 
 not have enforced it, or set off the sum due upon it at law, 
 
 Lord Hardwicke permitted the sum really advanced upon 
 
 it to be set off in account in a suit of equity. (2) 
 
 So where a lady directed her bankers to sell certain ex- Set off of 
 
 chequer annuities, and to invest the produce in nav}^ annu- separate 
 
 ities, and the bankers informed her that they had followed a<^ain9t a 
 
 her directions, and an entry was made in her banking book, joint and 
 
 in which credit was given to her regularly for the divi- ^^^ ^n jhe 
 
 dends : — several years afterwards her brother, having a ground of 
 
 r 1 
 separate account with the bankers, proposed to borrow of *^^" 
 
 them 1000/., upon the security of the joint and several note 
 of himself and his sister, which was agreed to, and the note 
 given accordingly: — the bankers became bankrupt; and 
 it then appeared that they had not purchased the navy 
 annuities, and that the documents which they had exhibited 
 to the petitioner were false : — the assignees of the bankers 
 brought an action against the brother alo7ie upon the note, 
 upon which the brother and sister petitioned to be at liberty 
 to set ofF the debt due from the bankers to the sister against 
 what was due to them upon the note ; — and Lord Eldon, 
 upon the ground of the Jraud practised upon the sister, re- 
 strained the assignees from proceeding at law, and ordered 
 the set-off as prayed for. (3) When this' case, however, 
 was subsequently cited as an authority. Lord Eldon ob- 
 served, that there were certain difficulties in the decision 
 
 (l) Diiiwiddie v. Bailey, 6Ves. (2) Ryall \. Rowles, 1 Ves. 37 5. 
 136, Toivnrow V. Benson, 5M.VLd. (3) Ex parte Stephens, 1 1 V^es. 
 203. Jmnes V. Ki/nnier, 5 Vcs. 108. 24, 
 
 3 A
 
 722 OF SET-OFF. [Ch. 17. 
 
 Equitable, of it : and that but for the fraud, he should have doubted 
 
 much whether his decision was right. (1) 
 The like gut although there can in general be no set-ofF(as we 
 
 joint debt, ^'^ve already seen (2) ) between joint and separate debts, 
 to prevent yet upon equitable principles, and independently of any 
 " ^"'^' case of fraud, such a set-off, in order to prevent circuity, 
 will be occasionally allowed. Thus, where A. (upon enter- 
 ing into partnership with B.) applied to his bankers for a 
 loan to constitute his capital, to which they consented, 
 upon condition that B. should join in a security for the re- 
 payment of the loan — and A. and B. accordingly gave the 
 bankers their joint and several bond : — the partnership 
 opened a joint account with the bankers, who also coii- 
 tinued the private bankers of A. : — the bankers became 
 bankrupt, when the balance on the joint account, arising 
 from this loan, was against A. and B., but A.'s private 
 account was in Ids favour ; — under these circumstances, A. 
 and B. were allowed to set off this private balance due to 
 A., against the joint debt due from them both to the 
 bankers ; for though A. could not at law have pleaded a 
 set-ofF of this private balance due to him alone, in an 
 action brought against him and B. jointly on the bond, yet 
 the moment the bankers obtained judgment, A. could have 
 then brought his action against them for his separate debt ; 
 and if B., the surety, had paid the joint debt, A. would, of 
 course, have then repaid him by the money recovered in 
 that action ; consequently, the joint debt due from A. and 
 B. on the bond was nothing more, as Lord Eldon observed, 
 than a security for the separate debt of A.; and upon 
 equitable consideration, a creditor, who has a joint security 
 for a separate debt, cannot resort to that security, without 
 allowing what he has received on the separate account, in 
 respect of which the joint security was given. (3) 
 
 (l) Ex parte Blagden, 2 Rose, (.3) Ex parte Hanson, 12 Ves. 
 
 251. 19Ves.467. 346. 18 Ves. 2,52. 1 Rose, 156.; 
 
 C2) See ante, section 3. and see Vulliamy v. Noble, 3 Mcviv. 
 
 618.
 
 Sect. 6.] OF SET-OFF. 728 
 
 Upon the same principle, where two partners gave a Equitable. 
 joint and several bond to a creditor, who afterwards be- Creditor 
 came indebted to A. (one of the partners) ; and B., the restrained 
 other partner, becoming bankrupt, the creditor proved the c'^edin^ln 
 bond under B.'s commission, and then brought a joint a. joint ac- 
 action against A. and B., to which B. pleaded his certifi- ^""allow- 
 cate, — an injunction was granted to restrain the creditor ing a set- 
 from proceeding in the action, which being a joint one, A. ^^ ^^ 
 would have been precluded at law fi'om setting off the se- debt. 
 parate debt due to himself. (1) 
 
 Where it was agreed between A. resident in London, Set-off of 
 and B. who resided in the West Indies, that A. should refemil^. 
 accept bills drawn upon him by B. to a specific amountj 
 upon A.'s having bills of lading filled up to his order for 
 colonial produce — and that after deducting A.'s advances, 
 &c. the balance was to be paid to C, for whom B. acted as 
 agent in the West Indies : — B. accordingly shipped goods 
 with a bill of lading filled up to B.'s order, previous to the 
 arrival of which C. became a bankrupt : — the captain re- 
 fusing to deliver the goods to A., the latter was obliged to 
 sue him in trover, and the cause was referred to arbitra- 
 tion : — in an action by the assignees of C. against A. for 
 the balance of the proceeds of the goods, it was held, that 
 A. was entitled to set off against such balance the costs of 
 the reference, as well as the costs of the cause ; for that 
 being authorized by the bill of lading to act for the benefit 
 of all concerned, and to do all that was necessary to obtain 
 possession of the goods, there was nothing to show, that a 
 reference was an improper step to effect that object. (2) 
 
 Costs in equity, which before the new act could not be Costs in 
 proved under a commission against a party, unless they ^ ^' 
 were taxed (3) before the bankruptcy, could still less be the 
 subject of set-off. (4') But as the 5Slh sectioji now enables 
 
 (1) Bradley v. Millar, 1 Rose, (5) Ex parte Sneaps, C. B. L. 
 273. 192. Rex v. Davis, 9 East, 320. 
 
 (2) Curtis \. Barclay y 5 B. & C. (4) Ex parte Thotms, 15 Ves. 
 141. 539. 
 
 3 A 2
 
 724 
 
 OF SET-OFF. 
 
 [Ch. 17. 
 
 Accounts, a party, who has in any suit at law or in equity, or in any 
 ~ proceeding in bankruptcy or lunacy, obtained a judgment, 
 
 decree, or order, for any debt or demand proveable under 
 the commission, to prove also for the costs, although not 
 taxed at the time of the bankruptcy; — so, it is apprehended, 
 he will now be permitted to set off such costs against any 
 demand of the assignees. 
 
 Whether 
 an account 
 can be dis- 
 puted, 
 after set- 
 off allowed 
 by the 
 commis- 
 
 Section VII. 
 Of the Mode of balancing the Accounts. 
 
 In cases of mutual credit between the bankrupt anc? 
 persons who have dealt with him before his bankruptcy, 
 there are two modes b}^ which the accounts may be ba- 
 lanced, viz. either by the (1) commissioners, as directed by 
 the statute, or upon the trial of an action at law. When a 
 debt has once been liquidated before the commissioners, 
 Lord Mansfield held, that it could only afterwards be liti- 
 gated by an application to the Great Seal — the only way to 
 question the proof of a debt being by petition to the Lord 
 Chancellor. (2) But where assignees brought an action 
 against a defendant, who pleaded a set-off that covered the 
 whole demand claimed by the assignees, and tendered the 
 proof of a debt before the commissioners, as evidence of 
 the subject matter of the set-off, — Lord Ellenborough re- 
 fused to receive it, saying that the commissioners could 
 neither be considered as having done a binding judicial 
 act, nor as having represented the assignees, and thus as- 
 sented to the defendant's demand ; and that it would only 
 be sufficient evidence against the assignees, if it could be 
 
 (1) The 4 & 5 Ann. c. 17. en- included them again; but the new 
 
 abled the assignees as well as the statute once more confines the 
 
 commissioners, to balance the ac- power to the commissioners, 
 
 counts. The 6 G. 1. c. 1 1. omitted (2) Brown v. Bullcn, Doug. 407. 
 the assignee? ; the 5 G. 2. c. 30.
 
 Sect. 7.] OF SET-OFF. 725 
 
 shown that tkei/ acknowledged that the proof was just. (1) Accounts. 
 
 In such a case, however, the Lord Chancellor, if he thinks 
 
 the set-off ought to be allowed, will (as he did in this) upon 
 
 petition grant an injunction tQ restrain the assignees from 
 
 further proceedings at law. (2) 
 
 In balancing the accounts, Lord Hardwicke held, that Computa- 
 
 where debts carried interest, the commissioners ought to y°" ° *'*" 
 
 ' ^ ° terest. 
 
 stop interest on both sides of the account at the time of the 
 bankruptcy : or to compute it on both sides till the final 
 settling of the account. (3) This rule has been objected to 
 by a learned writer ("i) on bankruptcy; but it does not ap- 
 pear by any subsequent decision to have been departed 
 from. 
 
 (1) Pirie v. Mennett, 3 Camp. (4) See Christian's B. L. Vol.1. 
 279. 524. where it is contended, that 
 
 (2) Ex parte Mennett, 1 Rose, Lord Hardwicke's rule ought only 
 395. to be adopted, when the balance 
 
 (3) 1 Atk. 80. is in favour of the bankrupt's estate, 
 
 and not where it is the other way. 
 
 3 A 3
 
 726 
 
 CHAP. XVIII. 
 
 Of SUITS AT LAW AND IN EQUITY BY AND AGAINST THE 
 ASSIGNEES. 
 
 Sect. 1. Of Suits in Equity. 
 
 2. Of Actions at Latio ,- and herein of Proceedings 
 
 agai?ist the Sheriff". 
 
 3. Effect of the Bankruptcy upon Suits previously 
 
 commenced by the Bankrupt. 
 
 Section I. 
 Of Suits in Equity. 
 
 It is not the purpose of this chapter to consider every case, 
 in which the assignees may have a right of action, or suit, 
 against persons in possession of the bankrupt's property ; 
 that inquiry, as it is conceived, more properly appertaining 
 to the division of a former chapter (1), in which all the 
 various species of property passing to the assignees by 
 virtue of the assignment, and the different circumstances 
 vmder which they can claim it, have been already fully 
 considered. The object we have now in view is, therefore, 
 to treat more particularly of the forms and proceeditigs 
 which the assignees must adopt in the exercise of their 
 right, in order to recover the different kinds of property 
 which the bankrupt was previously entitled to; — or which 
 he would have been entitled to, if he had not become 
 bankrupt. 
 
 The whole of the bankrupt's estate being vested in the as- 
 signees by the assignment as fully as it was in the bankrupt 
 himself, they have the same remedies to recover it either by 
 
 (1) Chapter XI.
 
 Sect. I.] 
 
 OF SUITS IN EQUITY. 
 
 727 
 
 suit or action (1) — with this exception, however, that they 
 are by the S%th section restrained from commencing suits in 
 equity without the consent of the major part in value of the 
 creditors (who have proved under the commission) present 
 at some meeting, of the purport whereof twenty-one days' 
 notice shall have been given in the London Gazette ; or if 
 one third in value of such creditors shall not attend at such 
 meeting, then the assignees must procui'e the consent in 
 writing of the commissioners. And the same previous 
 consent, we have before seen (2), is necessary to enable 
 them to compound any debt, or to submit any dispute to 
 arbitration. 
 
 Creditors cannot give the assignees a general power to 
 prosecute suits, or submit matters to arbitration at their 
 own discretion ; but there must be a meeting of creditors as 
 directed by the statute, to consider of each particular suit, 
 or case for arbitration. (3) But when the meeting is pro- 
 perly advertised, the majority in value of the creditors pre- 
 sent have a right to bind those who are absent. (4) 
 
 If the assignees, without the consent of the creditors 
 regularly obtained in the manner before mentioned, take 
 upon themselves to file a bill against any person, the de- 
 fendant may plead that the suit was not instituted with the 
 consent of the creditors at a meeting pursuant to the 
 requisitions of the statute. (5) 
 
 Where the majority in value of the creditors refuse 
 to permit the assignees, to institute a suit in equity, it has 
 been held, that any creditor may in that case bring one, 
 but at the peril of costs. (6) Thus, where the majority of 
 creditors had dissented from bringing a suit to redeem a 
 lease, and the other creditors filed a bill against the mort- 
 gagee and the assignees for that purpose, — redemption was 
 
 Cannot be 
 commenc- 
 ed without 
 consent of 
 creditors ; 
 
 but they 
 cannot 
 give assig- 
 nees a 
 general 
 power. 
 Majority 
 present 
 binding. 
 
 When as- 
 signees sue 
 without 
 consent. 
 
 When cre- 
 ditors re- 
 fuse to 
 assent. 
 
 (1) Bl. Com. 485. Hussey v. 
 Fiddall, 6 Mod. 524. 3 Salk. 59. 
 
 (2) Ante, 325. 
 
 (3) Ex parte Whitchurch, I Atk. 
 90. 
 
 3 i 
 
 (4) Cooper v. Pcpys, 1 Atk. 106. 
 
 (5) Ocklestone v. Benson, 2 Sim. 
 &S. 265. 
 
 (6) Franklyn V. Fenn, Barnai'd. 
 Rep. 30. 
 
 4
 
 728 OF SUITS IN EQUITY. [Ch. 18. 
 
 accordingly decreed (1); and it was said, that this was like 
 the case of an executor, who being the proper party to get 
 in the estate, the Court will not in general suffer the cre- 
 ditors of the testator to file a bill in equity to get it in ; but 
 that if collusion is charged, it is otherwise. (2) 
 When If the interests, however, of the creditors are not affected 
 
 consent — ^^ if the object of the suit by the assignees is to enforce 
 
 not reqiu- -^ _ , •' . '^ 
 
 site. a mere pej'sona I claim of indemnity, then the consent of the 
 
 creditors will not be necessary to the institution of the suit. 
 
 All the as- Nor need all the assignees be plaintiffs ; for if any refuse to 
 
 signees j^jj^ jj^ ^y^^ gyjj-^ jj^gy ^^^y [3^ lyj^de defendants (3) ; and the 
 
 sue. others would not be prevented from asserting their rights. 
 
 Bankrupt It is not, now, necessary, that a bankrupt should be made 
 
 need not ^ party to a bill against his assignees (4) ; though the con- 
 
 party to trary was formerly held. (5) But, though it is not necessa7y 
 
 the suit. that the bankrupt should be joined in the suit, it is not a 
 
 ground of demurrer if he is made a party to it, more 
 
 especially when he is charged as a confederate in a fraud. 
 
 As where a bill was filed against a bankrupt and his 
 
 assignees, stating a fraudulent bankruptcy concerted to 
 
 defeat the plaintiff's execution, and praying a discovery 
 
 and an injunction against an action threatened by the 
 
 assignees — and the bankrupt demurred, alleging that he 
 
 was not concerned in the suit, and that the discovery was 
 
 matter of evidence between the plaintiff and the other 
 
 defendants, to which he might be examined as a witness; — 
 
 Lord Loughborough said, tiiere was no pretence for the 
 
 demurrer, which was accordingly overruled. (6) And it 
 
 seems to be generally understood, that if any discovery 
 
 is sought of the bankrupt's conduct de/orc he became 
 
 (1) Ibid. 311. note. Co/Z^t v. WoUaston, 
 
 (2) See the cases on this subject 3 Bro. 228. Griffm v. Archer, cit. 
 collected in t!ie notes to the case of 2 Vcs. jun. G45. Whitworth v. 
 ElmsRe v. iWAulaj/, 3 Bro. C. C. Davis, 1 Ves. & B. 545. L/01/d v. 
 624. Eden's edition. Lander, 5 Mad. 282. 
 
 (3) Wilkins v. Fry, 1 Meriv, 1. (5) Sharp v. Gamon, 2Vern.52. 
 2 Rose, 371. (6) King V.Martin, 2 Ves. jun. 
 
 (4) Begolls V. Ward, 2 P. Wms. 641.
 
 Sect. 1.] OF SUITS IW EQUITY. 729 
 
 bankrupt, he must answer to that part of the bill for 
 the sake of discovery, and to assist the plaintiff' in obtain- 
 ing proof; though his answer cannot be read against his 
 assignees. ( 1 ) 
 
 Where a mortgagor becomes bankrupt, and a bill of Bill of 
 foreclosure is filed against him and his assignees, the '"'"'^'^lo- 
 Court will not, on the application of the assignees alo?ie, against a 
 make an immediate decree under the 7 G. 2. c. 20.(2) bankrupt 
 
 Where a bill was filed by a creditor (upon a debt jjii 5, ^ 
 accruing qfic7- the bankruptcy) against the assignees, as by a crc- 
 
 well as the executor of the bankrupt, for an account (on ,°^ "" * 
 , ,,.,,. , \ 1 . , debt after 
 
 the ground or there bemg a surplus), and to restrani the the bank- 
 assignees from paying the surplus to the executor, and the ruptcy. 
 assignees demurred to the bill ; — the demurrer in this case 
 was allowed, as the executor only was liable to the cre- 
 ditor, and the assignees to the executor. (3) 
 
 Upon a bill filed by the assignees for the discovery of a When 
 
 bankrupt's effects, the defendants will not be permitted to ^'^'ei^ants 
 
 not per- 
 look into their depositions taken before the commissioners, mitted to 
 
 to assist them in putting in their answer. (4) refer to 
 
 In case of the death, or removal, of the assignees, the sitions. 
 
 new assignees were obliged before the recent statute, to Suits will 
 
 file a supplemental bill to entitle them to the benefit of the b^\he^^^ 
 
 proceedings in a suit begun by the former assignees ; for death, or 
 
 in a case of this kind, where other assignees were by order ^^™°^^* °' 
 
 . , f> I 1 assignees. 
 
 of court put into the room or those who were dead or dis- 
 charged, it was held, that there was no privity between the 
 bankrupt and the new assignees; or, at least, but an artificial 
 one, and therefore that they could file no bill of revivor. (5) 
 But now by the 67tk section of the new statute, whenever 
 an assignee dies, or a new assignee is chosen in the manner 
 specified in the act, no action at law or s^iit in equity shall 
 be thereby abated ; but the Court may, upon the sug- 
 
 (1) Mitford on Pleading, 142. (s) Uttersonv.Mair,'\Bx 0.210. 
 
 (2) Garth v. Thomas, 2 Sim. & 2Ves. jun.95. 
 
 St. 188. (4) Bodcn v. Dellow, 1 Atk.288. 
 
 (5) Anon. 1 Atk. «8.
 
 730 OF SUITS IN EQUITY. [Ch. 18. 
 
 gestion of such death, or removal, and new choice, allow 
 tlie name of the surviving; or new assignee or assignees to 
 
 o o O 
 
 be substituted in the place of the former; and such action 
 
 or suit shall be prosecuted in the name or names of the 
 
 surviving or new assignee or assignees, in the same manner 
 
 as if he or they had originally commenced the same. 
 
 How as- And by section 89. in any commission against one or 
 
 oneTart*- "^^re of the members of a partnership, the assignees may, 
 
 ner may upon obtaining the order of the Lord Chancellor, prosecute 
 
 *"^' any suit or action in the names of such assignees, and of 
 
 the remaining partner or partners against any debtor of 
 
 the partnership ; and may obtain such judgment, decree, 
 
 or order, as if the action or suit had been instituted with 
 
 the consent of the other partners. 
 
 Section II. 
 
 Of Actions at Larv, a?id herein of Proceedings agaiiist the 
 Sheriff. 
 
 Assif^nees The 6Sd section of the new statute, as we have already 
 may sue in seen ( 1 ), has given the commissioners power to assign (among 
 names • ^^^ bankrupt's other property) all debts due to him ; which 
 are declared to vest in the assignees as fully, as if the as- 
 surance whereby they may be secured had been made to 
 the assignees themselves ; and it has also given them the 
 like remedy to recover the debts in their own names, as 
 the bankrupt himself might have had. This is a peculiar 
 privilege possessed by the assignees of a hankriq^t; for every 
 other assignee of a debt is obliged at law to sue for the 
 recovery of it in the name of the assignor. (2) 
 
 (1) Ante, 385. name for a chose in actioti, that sta- 
 
 (2) In like manner a trustee tute conveying only a right of gro- 
 under the Scotch bankrupt act perti/ to the trustee, and not a 
 (the 54 G. 3. c. 157.) cannot in an right of suit. Jcffcry v. M'-Tag- 
 English court of law sue in his own gart^ 6 M. iV S. 126.
 
 8eCt. 2.] OF ACTIONS AT LAW. 7Sl 
 
 Iff however, u bond is made to a trustee in trust for except 
 the bankrupt, the assignees cannot then bring the action in ^ *^"' 
 their own names, but must, in such a case, sue in the name 
 of the trustee. ( 1 ) 
 
 One of several assignees may hold the defendant to bail Affidavit 
 on an affidavit of the debt, stating it to be due from the "^ ^^^^^' 
 defendant, " as appears by the bankrupt's books, and as 
 the defendant believes." But in every affidavit to hold 
 to bail made by an assignee, a tender in bank notes must 
 be negatived, as in ordinary cases. (2) 
 
 In actions at law by the assignees, whenever the con- When 
 tract is made by the bankrupt before his bankruptcy, they *^hcy muni 
 must state themselves in the declaration to be assignees; assignees. 
 but if the contract is made by the bankrupt after the com- 
 mission, they need not then name themselves assignees in 
 the declaration (3) ; for when the bankrupt sells or makes 
 any contract respecting property after the commission, the 
 assignees may in that case treat him as their agent — being, 
 in this respect, in the situation of executors, who sell goods 
 after the death of their testator. And in one case, where an 
 action was brought by assignees to recover back money paid 
 by the bankrupt before the commission was opened, but after 
 the act ofbanhruiitcy^ Baron Wood thought that it was not 
 necessary for them to declare as assignees, though he ac- 
 knowledged that to be the usual way. (4) 
 
 Assignees under a Joint commission against A« and B., in Assignees 
 
 suing on a separate contract entered into with A., may de- ""'^^''i''^"^ 
 
 coniniis- 
 scribe themselves generally as the assigtiees of A., without sion suino- 
 
 noticing the name of B. (5) o" a *^/^«- 
 
 -r. • 1,7 , ■ . r^^^' con- 
 
 But assignees under three separate commissio7is cannot tract. 
 
 properly sue as joint assignees, but must state their re- Assignees 
 
 spective interests in the declaration (6); though this would ""'^^'' 
 
 ° three sepa- 
 
 (1) Ex parte Cq?/5<?g«»jf, 1 Atk. (4) Thomas v. Rideing, Wighty;. 
 193. Rep. 65. 1 Rose, 121. 
 
 (2) Smith V. Barclai/y 5 Bos. & {5)Stonchousev.DcSilva,3C:xvQY>. 
 P. 219. 599. Harvey V. Morgan, 2 Star. 
 
 (3) Evans v. Mann, Cowp. 5QD. 17. 
 
 (6) Hay V. Davis, 2Moort, 7.
 
 732 
 
 OF ACTIONS AT LAW. 
 
 [Ch. 18. 
 
 rate com- 
 missions. 
 
 Variance. 
 
 Non- 
 joinder. 
 
 Need not 
 set forth 
 commis- 
 sion, &c. 
 
 Where 
 assignees 
 may bring 
 either 
 trover or 
 assumpsit. 
 
 be good after verdict, if there was nothing to shew by the 
 record, that they did not claim under a joint commission. (1) 
 Where in an action by plaintiffs, as the assignees of C. and 
 E., they were described in a notice to produce a document 
 as assignees of C and D., this was held to be bad, although 
 the plaintiffs were in fact the assignees of C. and D. (2) 
 The non-joinder of a joint assignee is a ground of nonsuit 
 upon the trial, under a plea of the general issue, and need 
 not be pleaded. (3) 
 
 The assiffnees need not set forth in the declaration the 
 commission and proceedings at large, or how the party 
 became a bankrupt, but may declare shortly. (4) And 
 they may sue both in the debet and detinet^ as the whole 
 property of the bankrupt is vested in them by law : and a 
 proceeding by a scire facias is the same in this respect, 
 as if they proceeded in a common form of action. (5) 
 
 It seems to have been formerly held, that ii after an act 
 of bankruptcy the bankrupt paid money, or delivered goods, 
 to any person, the assignees could not declare in assumpsit, 
 but were obliged to proceed in trespass or trover for the 
 tort. (6) But it was afterwards finally settled, that whoever 
 takes the bankrupt's goods and converts them into money 
 is supposed, in justice, to receive the money for the use of 
 the assignees (in whom the property of the goods by law 
 is vested) — and to promise to pay it to their use; and that 
 the law in this instance implies a privity of contract between 
 the persons, whose money it lawfully is, and the person 
 who actually received it. (7) The assignees may therefore, 
 in such a case, either aflRrm the contract and bring indebi' 
 tatus assumpsit for the money — or disaffirm it and bring 
 trover for the goods. (8) Thus, if a trader become bank- 
 
 (1) Streatfield v. HaUiday, 2 T. 
 R. 779. 
 
 (2) Harveyy. Morgan,2^taT. 17. 
 
 (3) Snelgrnve v. Hunt, 2 Star. 
 424. 
 
 (4) Tul/yv. Sparkcs, Ld.R. 1546. 
 Winter v. Krclchman, 2 T. R, 45. 
 
 (5) Ibid. 
 
 (6) Per Lord Hardwicke, Bilton 
 V. Hyde, 1 Ves. 329. 
 
 (7) Kitchen v. Campbell y 3 Wils. 
 308. 2 Bl. 827. 
 
 (8) Husscy V. Fiddall, 12 Mod. 
 324. 3 Salk. 59. Read v. Vuitghan, 
 7 Mod. 461. Kitchen v. Campbell, 
 supra. Readv.Jameii, 1 Star. 154.
 
 Sect. 2.] OF ACTIONS AT LAW. 733 
 
 rupt by lying in prison after an arrest, and a broker (having Trover or 
 
 notice that a commission would be issued against him) sell " ^^'" ^ 
 
 the bankrupt's goods, and pay him the produce before the 
 
 period of imprisonment is completed to constitute the act 
 
 of bankruptcy, — the assignees may, in this case, maintain 
 
 either trover or assumpsit against the broker. (I) So, where 
 
 a defendant took the goods of the bankrupt in execution 
 
 after an act of bankruptcy, and then got possession of them 
 
 under a bill of sale from the sheriff^ — Lord Elienborough 
 
 held, that the assignees were entitled to recover against the 
 
 defendant in an action for money had and received^ though 
 
 no money was actually paid to him, and though trover 
 
 would have been the preferable remedy. (2) 
 
 When the assignees seek to recover goods in disaffirm- Distinc- 
 
 ance of the bankrupt's acts, they must shew not only that ''°" ^"^' 
 
 . tvveen 
 
 the property in the goods 07ice vested in the bankrupt, but these two 
 
 must also give evidence to avoid the acts of the bankrupt, '°'™s °^ 
 
 as to the disposal of the goods. If they bring trover^ they 
 
 may recover the full value of the goods ; but if they bring 
 
 assumpsit, they can then only recover what the goods 
 
 actually sold for, or what the party actually received; and 
 
 in the latter form of action, also, which operates as an 
 
 affirmance of the contract by the assignee, the defendant 
 
 will have the right of setting off any debt due to him from 
 
 the bankrupt. (3) 
 
 After the assignees, however, have once elected to bring when 
 
 either trover or assmnvsit, if they proceed to judgment in the t^^y '^^^^ 
 
 oncG 
 action so brought, they cannot afterwards adopt the other elected. 
 
 form of action; for a judgment in trover may be pleaded 
 
 in bar to an action of assumjjsit for the same goods (4) ; 
 
 since, though the actions are grounded on diffei'ent writs, 
 
 the cause of action is the same in each. A judgment of 
 
 nonsuit, however, in one action would not preclude them 
 
 (1) King V. Leith, 2 T. R. 141. (s) King v. Leith, 2 T. R. 141. 
 
 (2) Reed V. James, 1 Star. Rep. Smith v. Hodson, 4T. R. 211. 
 134.; but see Walter y. Drakeford, (4) Kitchen v. Campbell, supra, 
 ibid. 482. and Nightingale v. De- Hussei/ v. Fiddell, supra. 
 
 vis7ie, 5 Burr, 2589.
 
 734 
 
 OF ACTIONS AT LAW, 
 
 [Ch. 18; 
 
 Trover. 
 
 Cannot 
 treat the 
 same trans- 
 action 
 both as a 
 contract, 
 and a tort. 
 
 Where 
 trover will 
 not lie. 
 
 from bringing the other. ( 1 ) But they cannot affirm the 
 same transaction in one part as a contract, and disaffirm it 
 in another as a tart. Therefore, where a person after the 
 bankruptcy received from the bankrupt's wife money of the 
 bankrupt's, with which he bought South Sea bonds and 
 delivered them to her, and the assignees seized some of 
 the bonds as part of the bankrupt's estate ; it was held, 
 that they could not maintain trover against such person 
 for the money, with which he purchased the remainder of 
 the bonds, as the seizing of part of the bonds was an affirm- 
 ance of the defendant's act in laying out the money. (2) 
 So, where assignees recovered money from a banker paid by 
 him upon the bankrupt's drafts after notice of the bank- 
 ruptcy, they could not also maintain an action against the 
 creditor, to whom the money was paid by the banker, 
 though the banker had no other way of recovering the 
 money back (3), than procuring the assignees to sue the 
 creditors. 
 
 But although trover is in general, for the reasons above 
 stated, the proper form of action when there is any fraud 
 in the transaction which the assignees seek to impeach, yet 
 there are many cases in which trover will not lie, and 
 where the only remedy is an action of assumj)sit. Thus, 
 where a bankrupt after his bankruptcy gave a creditor a 
 check upon his bankers, who paid the amount of it to the 
 creditor, — it was held, that the assignees could not recover 
 the money by an action of trover against the creditor for 
 the check, as the action proceeded on the ground that the 
 check was worth nothing — and assignees cannot sue for a 
 void authority given by the bankrupt. (4) So, where a 
 creditor (with the knowledge of the bankrupt's insolvency) 
 prevailed on the bankrupt to sign bills drawn upon the 
 bankrupt's debtors, on stamped paper produced by the 
 
 (1) Nightingale v. Devisne, 
 5 Burr. 2589. Walker v. Laing, 
 I Moore, 286. note. 
 
 (2) Wilson V. Poulter, 2 Str. 859. 
 
 (o) Vernon v. Hanson, 2 T. R. 
 287. 
 
 (4) Mathctu V. Slwrufell, 2 Taunt. 
 459.
 
 Sect. 2.] OF ACTIONS AT LAW. 735 
 
 creditor — and then induced the drawees (who were not Trover. 
 aware of his circumstances) to accept them, — it was held, 
 that trover would not lie by the assignees for the bills, there 
 being no colour to say that either the bankrupt before his 
 bankruptcy, or the assignees after the bankruptcy, had any 
 property in them; but that their remedy was an action for 
 money had and received against the defendant, when the 
 bills were paid. (1) 
 
 So the assignees cannot maintain trover against a Where 
 vendor, for goods contracted to be bought of him by the not against 
 bankrupt, unless the bankrupt had the right of j)osscssion, of .roods. 
 as well as a right oi i)roi)crtij in the goods: and a vendee 
 does not acquire a right of possession to goods bought — 
 which are not delivered, and where nothing is said about 
 any credit or time of payment — until he pays, or tenders, 
 the price of the goods to the vendor. (2) And even where 
 goods have been bought by the bankrupt at certain credit, 
 and ipart of the price has been paid for them, but no notice 
 was given to the persons (in whose warehouses they were 
 deposited) to transfer them into the name of the bankrupt, 
 — it was held, that the assignees could not maintain trover 
 against the vendor for the goods, without tendering the 
 remainder of the price — whatever right of action they 
 might have had against the vendor for not returning the 
 money, which had been paid in part of the price — or for 
 selling the goods to other persons, when according to con- 
 tract he might have no right to sell. (3) 
 
 Where, however, the bankrupt had advanced money on where 
 bills, and after an act of bankruptcy he sent the bills to the trover will 
 defendants, it was held, that trover in this case would lie 
 by the assignees to recover the bills from the defendants. (4) 
 And where, also, a bankrupt had assigned a policy of 
 assurance to the defendant, which was afterwards dis- 
 covered to be invalid, and the insurance company paid 
 
 (1) Walker v. Laing, 7 Taunt. (s) Bloxa7nv.2Iorlei/,\hid.951. 
 568. (4) Wall V. Barnard, 1 Carring. 
 
 (2) Bloxain v. Sanders, 4 B. & N. P. 382 
 C.941.
 
 736 
 
 OF ACTIONS AT LAW. 
 
 [Ch. 18. 
 
 Trover. 
 
 When ne- 
 cessary to 
 prove a de- 
 mand and 
 refusal. 
 
 As to ad- 
 mission of 
 proceeds 
 in an 
 account 
 stated. 
 
 to the defendant half the sum insured as a gratuity on his 
 giving up the policy, it was decided that trover would lie, 
 though the value of the parchment only, ana not the sum 
 gratuitously paid, was recoverable. (1) An action, indeed, 
 for money had and received could not have been brought 
 in this case; for no action will lie to recover from another 
 what is paid to him as a gratuity. (2) 
 
 Where assignees bring trover for goods collusively sold 
 by the bankrupt on the eve of bankruptcy, they must 
 prove a demand and refusal in order to maintain the 
 action (3) ; for the selling was not in itself unlawful, though 
 the transaction might be liable to be impeached by the 
 assignees. But where they bring trover for goods in the 
 order and disposition of the bankrupt at the time of the 
 bankruptcy, then no demand and refusal is necessary to 
 support the action. (4) In trover also against a sheriff, or 
 the party suing out the execution, after an act of bank- 
 ruptcy (5), the assignees need not in this case prove an 
 actual demand; because, the property being vested in them 
 from the time of the bankruptcy, the execution is conse- 
 quently tortious, and is in itself evidence of a conversion. (6) 
 And although goods are purchased in the usual course of 
 trade of a bankrupt after a secret act of bankruptcy. Lord 
 Ellenborough held, that the very act of taking the goods 
 from one, who had no right to dispose of them, was in 
 itself a conversion. (7) 
 
 In an action of trover by the assignees, proof of an 
 account stated between the bankrupt and the defendant — 
 from which it appears, that certain proceeds constituting 
 part of the account had come into the hands of the defend- 
 ant subsequently to the bankruptcy — is sufficient to 
 throw upon the defendant the 07ius of proving his right to 
 
 (1) Wills V. Wells, 8 Taunt. 254. 
 2 Moore, 247. 
 
 (2) Boyler v, 
 R. 681. 
 
 (j) Nixon V. 
 135. 
 
 Dodsworth, 6 T. 
 JenkinSy 2 H. B. 
 
 (4) Soame v. Watts, I Carr. N. 
 P. Rep. 400. 
 
 (5) But see section 81. 
 
 (6) Bull. N. P. 41. 
 
 (7) Hurst V. Gwenna]), 2 Star. 
 Rep. ."507.
 
 Sect. 2.] OF ACTIONS AT LAW. 737 
 
 retain such proceeds, ailliough a large debt upon the ba- Trover. 
 
 lance may be due to the defendant. ( 1 ) 
 
 Where the assignees were sued with the bankrupts in As to joint 
 
 trover for goods, and tlie plaintiff proved that the bank- ^^^ ? '^°"" 
 " ' ^ * version. 
 
 rupts before their bankruptcy received, and afterwards dis- 
 posed of the goods by way of pledge, having no authority 
 so to do — and that the assignees after the bankruptcy, took 
 possession of the goods, and refused to deliver them to the 
 plaintiff on demand, — it was held, that this evidence did 
 not amount to a joint act of conversion against all the de- 
 fendants — the acts of the bankrupts, and those of the 
 assignees being not connected together, but wholly dis- 
 tinct; and that as there was only one count in the 
 declaration, the evidence did not, therefore, warrant a 
 general verdict of guilty against all the defendants. (2) 
 
 If a bankrupt shortly before his bankruptcy purchase When a*- 
 goods on credit, and fraudulently resell them for ready ^"1^*^^ 
 money considerably under their invoice price, — in this lie. 
 case, neither an action for goods sold and delivered (3), 
 nor for money had and received (4), can be maintained by 
 the assignees against the purchaser, to recover the differ- 
 ence between the sums paid to the bankrupt and the value 
 of the goods ; for, by bringing an action for goods sold and 
 delivered, the assignees would affirm the contract; and a 
 party selling goods at a price below their value, cannot re- 
 cover the difference in an action for money had and 
 received. The assignees might, perhaps, on account of 
 the gross fraud practised in such a case, treat the sup- 
 posed sale of the goods to the defendant as a nullity, and 
 then trover would be the proper remedy. (5) 
 
 But assignees, in suing a defendant on a contract of jjssyJJ,^^;^ 
 sale, are not to be taken absolutely to affirm that the affirms tlie 
 
 (1) Carter v. Barclay, 3 Star. (.3) Burra v. Clarke, 4 Camp. 
 Rep. 43. 555. 
 
 (2) Nicoll V. Glcnnie, ] M. & S. (4) Hogg\. MitehcU, 1 Star. 241. 
 588. (5) 4 Camp. 355. 
 
 3 B
 
 738 
 
 OF ACTIONS AT LAW. 
 
 [Ch. 18. 
 
 Assumpsit. 
 
 contract, 
 it does not 
 admit no 
 fraud in 
 the other 
 party. 
 
 Assignees 
 may bring 
 assumpsit 
 on a con- 
 tract of 
 bankrupt 
 made after 
 the bank- 
 ruptcy. 
 
 When no 
 money ac- 
 tually re- 
 ceived, as- 
 sumpsit 
 for money 
 had and 
 
 transaction \& fair throughout — but merely that nothing 
 on the fiart oj" the hmikruipt was fraudulent; they do not 
 therefore admit, that there was no fraud in the parties 
 against whom they are undertaking to enforce it. Thus, 
 where third persons holding the acceptance of a bankrupt, 
 who was known then to be in bad circumstances, agreed 
 with the defendants, in order to get value for this bill, (which 
 had been before refused to be taken by the bankrupt in 
 payment for goods from such third persons) that it should 
 be indorsed to defendants, who should buy goods of the 
 banki'upt in their own names, but for the account of such 
 third persons, and then set-off the bill in payment for 
 the goods, — it was held, that though this was a fraudulent 
 contrivance between the defendants and the original holders 
 of the bill to get payment of the whole debt of the latter out 
 of an insolvent estate, yet that the assignees might maintain 
 an action for goods sold and delivered against the defend- 
 ants ; and that the defendants could not set off the bill. (1) 
 The assignees also, as has been before stated (2), may 
 adopt any contract of the bankrupt, though made by him 
 after an act of bankruptcy, and may therefore sue the con- 
 tracting party in assumpsit. Thus, where the bankrupt 
 after the act of bankruptcy, contracted with a factor (to 
 whom he had delivered goods for sale, and who had ac- 
 cepted a bill upon the strength of the goods) to return the 
 bill to the factor, if he would return the goods to the 
 bankrupt, and the bankrupt did accordingly return the 
 bill, — the assignees were considered entitled to recover 
 against the factor for the non-delivery of the goods. (3) 
 But in a case, where East India stock was transferred by a 
 bankrupt after his bankruptcy, it was held, that the as- 
 signees could not, in order to recover the value of it, 
 maintain an action for money had and received against the 
 person to whom it was transferred ; for such an action, it 
 
 (1) Fair 
 loO, 
 
 V. M'lver, 16 East, 
 
 (2) Ante, 730. 
 
 (3) Butler V. Carver, 1 Star. 433.
 
 Sect. 2.] OF ACTIONS AT LAW. 739 
 
 was held, would not lie, where no money has actually been AssumpsU. 
 received. (1) The pra|ier form of action, in tliis instance, received 
 seems to have been a special action on the case. will not 
 
 Where counts for money lent and for money paid by the '^* 
 plaintiff as assig?iee, were joined with counts for money counts for 
 had and received to plaintiff's use, and upon an account money letu 
 stated v/ith him as assignee, it was held that these counts „*^^j 
 might well be joined, upon the special ground of the 
 5 G. 2. c. 30. s. 32. (3), which provided that the creditors 
 might direct, where the money arising out of the bank- 
 rupt's estate might be paid in and remain — under which 
 section the Court was of opinion that it would be lawful 
 for an assignee to lend ; but that if no case could be put, 
 where it would be lawful for him to do so, the declaration 
 would have been bad. (3) 
 
 In an action of assumpsit, unless there has been an ex- Mode of 
 press promise to the assignees, the right way of declaring ^^ ^"ng' 
 ■is, to lay the promise to have been made to the bank- 
 rupt. (4) But if there has been any promise to the 
 iissignees, or any cause of action accruing since the bank- 
 ruptcy, care must be taken to insert some count in the 
 declaration adapted to such demand. (5) 
 
 Where in an action by assignees against a defendant for Plea of 
 
 goods sold by the bankrupt, the declaration contained ^^"^'"P 
 ^ •' . ^ pending by 
 
 counts on promises made to the bankrupt before his bank- bankrupt, 
 ruptcy, and also on an account stated v/ith the plaintiffs as ^ 
 assignees — to which the defendant pleaded a former action 
 brought by the bankrupt upon the same promises before his 
 bankruptcy, and still pending, — it was held, on demurrei-, 
 that the plea was bad — first, because the former action 
 could not have been brought upon the account stated with 
 the plaintiffs as assignees — secondly, because the assignees 
 
 {i)NightingaIe\.Devisne,5'Q\\n. (3) Richardion v. Griffin, 5 M. 
 2589.; but see Reed v. James, &S. 294, 
 1 Star. 154. (4) Rig v. WUmer, 2 Str. 697- 
 
 (2) And see section\02. of the Anon. 6 Mod. 151. Fashien v. 
 «ew act. Dormet, 7 Vin. 159. 
 
 (5) Cliitty on Pleading, vol. i. 
 
 3 B 2
 
 740 
 
 OF ACTIONS AT LAW. 
 
 [Ch.18. 
 
 In cove- 
 nant for 
 rent, as- 
 signees not 
 obliged to 
 set forth 
 their title. 
 
 Debt 
 
 against an 
 executor. 
 
 Plea of 
 retainer. 
 
 Profcrt. 
 
 Ejectment 
 bad on a 
 demise 
 
 could not continue the former suit, even if they wished 
 it. (1) In assumpsit by the provisional assignee, where 
 the defendant pleaded the general issue, — it was held, that 
 the fact of the bankrupt's estate having been assigned by 
 the provisional assignee to the general assignees, between 
 the time of the issuing of the latitat and the delivery of the 
 declaration, was no ground of nonsuit upon a plea of non 
 assimipsit. Whether it would have been an answer to the 
 action, if specially pleaded, was left undecided. (2) 
 
 In an action o^ covcyiant for rent accrued since the bank- 
 ruptcy, brought by the assignees against the bankrupt's 
 lessee, the defendant is estopped from pleading that the 
 bankrupt nil habiiit in tenementis, nor can he force the as- 
 siirnees to set forth in the declaration their title to the 
 land. (3) 
 
 An action of d£ht on a simple contract cannot be main- 
 tained by assignees against an executor. (4) And in an action 
 of deht by the assignees, on a bond given to the bankrupt 
 to secure an annuity, for payments accruing after the bank- 
 ruptcy, where it appeared that, before any payment of the 
 annuity became due, the grantor lent the bankrupt a sum of 
 money, on which it was agreed, that the grantor should 
 retain the payments of the annuity as they became due 
 until that sum was discharged ; — it was held, that this agree- 
 ment and retainer might be properly pleaded, being consi- 
 dered equivalent to a plea of solvit ad diem. (5) In debt on 
 a specialty, assignees need not make profert of the deed ; be- 
 cause they are in by act of law, and may not have the 
 means of obtaining the deed to set it forth or produce 
 it. (6) 
 
 Where an action of ejectment was brought by assignees 
 to recover the bankrupt's freehold property, and the demise 
 
 (1) Biggs V. Cox, 4 B. & C. 920. 
 
 (2) Page V. Bauer, 4 B. & A. 
 345. S. C. nom. Page v. Vaughan, 
 2 Star. Evid. 167. note (r). 
 
 (5) Parker v. Maiming, 7 T. R. 
 507, 
 
 (4) Morgan v. Green, Cro. Car. 
 209. 
 
 (5) Sturdy v. Arnaud, 3 T, R. 
 599. 
 
 (C) Gray v. Fielder, Cro. Car. 
 209.
 
 Sect. 2.] OF ACTIONS AT LAW. 741 
 
 was laid before the bargain and sale of the lands in question before the 
 
 to the assignees, though after the date of the commission, "^'"g^i" 
 
 , , . and sale. 
 
 it was held that they were not entitled to recover ; for the 
 
 doctrine of relation back to the act of bankruptcy is ap- 
 plicable only to the assignment of the personal property of 
 the bankrupt, and does not extend to the conveyance of 
 hisfreehold property, which remains in the bankrupt, though 
 not beneficially, until taken out of him by the bargain and 
 sale.(l) 
 
 In a case where trespass was brought against assignees In trespass 
 for seizing goods, which they contended were assigned g^^^,ggs ^^' 
 fraudulently by the bankrupt to the plaintiif ; — it was held fraudulent 
 
 by Gibbs C. J., that the fraudulent conveyance was not of ^°"^^y" 
 
 , "^ . , _ "^ . ance not 
 
 itself a sufficient defence, without proving an act of bank- alone a 
 ruptcy committed by the bankrupt. (2) sufficient 
 
 Where an action was brought against assignees to re~ proceeds 
 cover the proceeds of a bill which had been specifically of bill 
 appropriated, it was held necessary to prove, that the pro- ^^^^^ ^ - ^ 
 duce of the bill came into the hands of the assignees, with ated. 
 a knotvledge on their part of the purposes for which the 
 bill was destined. (3) 
 
 No action can be maintained by the assignees for a mere Assignees 
 personal tort to the bankrupt, as for assaidt, or slander. ^^^"°*^^"^^ 
 But a late learned writer (4) seems to think, that in the sonal tort 
 case of a tort to the property of the bankrupt, which may f^ *^® 
 have deteriorated its value, (such, for instance, as running 
 down a ship, or cutting timber) whereby the assignees are 
 deprived of the benefit which they would otherwise have 
 enjoyed, the assignees might then sustain the action. It 
 has been doubted, however, whether the assignees can sue 
 for a tort committed against the estate of the provisional 
 assignee ; but in one case they were permitted, even after 
 
 (1) Doe V. Mitchell, 2 M. & S. an act of bankruptcy. See ante, 
 446. page63. et. seq. 
 
 (2) Young V. Wright, 2 Marsh, (3) Kieran v. Johnson, 1 Star. 
 253. But qujere, whether the con- 109. Quaere tamen; and see Ex 
 veyance being 'proved to be frau- parte Scn/ers, sVes. 169, 
 
 duient, ought not of itself in this (4) Evans'sStatutcs, 329. 2d edi- 
 case to have been considered as tion. 
 
 3 B 3
 
 742 
 
 OF ACTIONS AT LAW. 
 
 [Ch. 18. 
 
 As to im- 
 munity of 
 a garni- 
 shee. 
 
 Where 
 debt under 
 40s. 
 
 Assignees 
 barred by 
 statute of 
 limita- 
 tions. 
 
 Need not 
 allege in 
 pleading, 
 that the 
 defendant 
 had notice 
 of the act 
 of bank- 
 ruptcy. 
 
 two terms had elapsed, to ameiul the declaration, which 
 stated the wrong to be done to the provisional assignee. ( 1 ) 
 
 Where a debtor to the bankrupt has paid money to a 
 third person under due process of local law, he is not liable 
 to an action by the assignees ; therefore, though a creditor 
 of the bankrupt attaching the effects abroad is, as we have 
 seen (2), liable to refund to the assignees, yet the garnishee 
 himself, of whom the debt has been so recovered, is not 
 compellable to pay it over again. (3) 
 
 Where debts are under 40^., the assignees must, like 
 other persons, sue for them (4-) in the court of requests. 
 
 If the statute of limitations is pleadable by a debtor 
 in respect of his own debt again&t the bankrupt, the as- 
 signees may be barred by it likewise ; and the time is to be 
 computed from the date of the original cause of action, 
 and not from the date of the commissioners' assignment. (5) 
 But where a verdict is found for the assignees as plaintiffs 
 in an action, it is no ground for setting aside the verdict, 
 that it did not appear that the petitioning creditor's debt 
 was contracted within six years before the suing out of the 
 commission. (6) Where the defendant, in an action by as- 
 signees, pleads that the bankrupt released the debt before he 
 became bankrupt, and issue is joined on this plea which 
 is found for the assignees — and it appeared also at the trial, 
 that the release was executed more than two months before 
 the issuing of the commission, though after the defendant 
 knew of the act of bankruptcy ; — it was held, under these 
 circumstances, that the assignees were not obliged to allege 
 in their replication to the defendant's plea, that the de- 
 fendant hie'iSi that the bankrupt had committed an act of 
 bankruptcy before the execution of the release — but that it 
 was sufficient to prove that fact (7) at the trial. 
 
 (1) Freen v. Cooper, G Taunt. 
 358. 
 
 (2) Ante, 400. 
 
 (5) La Chevalier \ . Lynch,T)oug. 
 1 70. ; and see Mawdesleij v. Parke, 
 sjit. 1 II. B. 680. 
 
 (4) Kecti/\. liigg, iBos. &F.11. 
 
 (5) Grai/ v. Mendcz, 1 Str. 555. 
 South Sen Company v. WyvwndseU, 
 3 P. Wins. 143. Ashbrooke v. 
 Manhy, Comb. 70. 
 
 (6) Mavor v. Pync, 3 Bing. '2S5. 
 
 (7) Ibid.
 
 Sect. 2.] OF ACTIONS AT LAW. 743 
 
 When an assignee dies, or is removedj we have seen ( 1 ), Action not 
 
 diat no action then pending is thereby abated, but that it i\f.ax\i of 
 
 may be prosecuted in the name of the surviving or new as- assignee. 
 
 siffnees. But, if an order be made by the Lord Chancellor When a 
 
 . Ill- removed 
 
 to remove one of several assignees, and such order is not assi"nee 
 
 followed up by an actual re-assignment, or release of such must join 
 assignee to the remaining assignees, nor by any new assign- action. 
 ment of the commissioners, — the removed assignee ouglit, 
 in that case, to join in the action ; though, in an action of 
 trover, the non-joinder can only be pleaded in abatement ; 
 and the other assignees who sue may recover the propor- 
 tional parts or shares of the property sought to be re- 
 covered. (2) A new assignee may sue in debt upon a judg- New assig- 
 ment recovered by a former assignee removed by the Lord "^^ ^"^ 
 Chancellor, and may declare in a general form as having judgment 
 been duh/ constituted and appointed assignee, &c. (3) And ^^^^^ere 
 it seems, that when one of several assignees is removed, former 
 and assigns his interest to the other assignees, they may a^^gnee. 
 maintain an action for money had and received against hjm, j^ ^^^^^ 
 for money which came to his hands whilst he continued assignee, 
 assignee. (4) 
 
 When an assignee is not a creditor, and the bankrupt When an 
 brings an action against him to dispute the bankruptcy, ^qJ^^I^ 
 if the assignee is so much identified in interest with the mitted to 
 bankrupt, that the action would not be properly tried if he a^Jf^JJ^ jj'" 
 defended it, the Lord Chancellor will order, that the pe- bankrupt, 
 titioning creditor shall have the conduct of defending the 
 action. (5) 
 
 If the bankrupt, prior to his bankruptcy, has duly as- Assignees 
 signed his interest in a chose in action to a third person, ^^^ ^ ^j^^^^ 
 the action must not be in the name of the assignees, but in in action 
 the name of the bankrupt (6) ; for property, in which the ^ ^^ 
 
 (1) See ante, 728. (4) Smith v. Jameson, Pcake, 
 
 (2) Bhxamv. Hubbard, 5 East, 213. S. C. 5 T.R. 601. Wrayv. 
 407. Barms, Peake, 69. 
 
 (3) De Cosson v. Vaughan, (5) Ex parte Stewart, 2 Rose, 6. 
 10 East, 61. (6) Carpenter v. Mantel/, 3 Bos. 
 
 & P. 40. 
 
 3 B 4
 
 74,^ 
 
 OF ACTIONS AT LAW. 
 
 [Ch. 18. 
 
 Provision 
 for pay- 
 ment of 
 money 
 into court. 
 
 Assumpsit, bankrupt has only a trust estate, does not pass in any way 
 to the assignees under the commission. 
 
 By section 98. of the new statute, if the assignees com- 
 mence any action or suit for any money due to the bank- 
 rupt before the time allowed for him to dispute the com- 
 mission shall have elapsed, the defendant may, after notice 
 to the assignees, pay the same or any })art thereof into 
 Court ; and all proceedings with respect to the money so 
 paid shall thereupon be stayed, and after the time given to 
 the bankrupt to dispute the commission shall have elapsed, 
 the assignees may have the same paid to them out of 
 Court. 
 
 Assignees are not restrained, any more than other per-^ 
 sons, from bringing a fresh action after a nonsuit. (1) 
 
 Actions by 
 assignees 
 of one of 
 several 
 partners. 
 
 When 
 goods (le- 
 liveretl by 
 solvent 
 partner 
 bonajide. 
 
 When one of several partners becomes bankrupt, it is 
 provided by section 89. of the new statute, that the assignees 
 may, upon obtaining the order of the Lord Chancellor, 
 prosecute any action in the joint names of such assignees, 
 and of the remaining partner or partners. (2) In such a 
 case, indeed, if any action ex contractu is brought in the 
 names of all the partners, the bankruptcy may be pleaded 
 in bar. (3) And even where money is paid by solvent 
 partners cifter the hanlcruptcy of the others, on account of 
 the dealings of the general partnership, they cannot sue 
 for it without joining the assignees of the bankrupt part- 
 ners as plaintiffs. (4') Where goods are bo7id Jide deli- 
 vered for a valuable consideration to a third person by 
 the solvent partner, after the act of bankruptcy of the 
 other partner, the assignees of the bankrupt partner can- 
 not maintain trover against the consignee of the goods; 
 for the assignees are in such case tenants in common with 
 the consignee, by relation from the time of committing 
 
 (1) Ex parte i/iV/tH, 1 Jac, & W. (3) Eckhardt v. Wilson, sT.R. 
 
 467. 140. 
 
 (-') And see Tliomason v. Frerc, (4) Graham v. Robertson, 2 T. 
 
 10 East, 61. R. i;82.
 
 Sect. 2.3 OF ACTIONS AT LAW. 74-5 
 
 the act of bankruptcy, and one tenant in common cannot Partners. 
 
 maintain ( 1 ) trover against another. And still less could 
 
 the assignees maintain such action, when the consignee 
 
 of the goods happened, also, to be the executor (2) of the 
 
 solvent partner. 
 
 The assignees of two partners under separate com- Joint debt 
 
 missions cannot recover in the same action a joint debt due """ '^fP*' 
 
 '' . rate debt 
 
 from the defendant, and also separate debts due from him not reco- 
 
 to each partner. (3) But, where the plaintiffs sued as ^o^'il^le in 
 
 the stiuie 
 assignees of A. and B., and also as assignees of C. for a action. 
 
 joint debt due to all three ]mit?iers (for which they could Irregula- 
 formerly, in strictness of law, only sue as assignees, either f'^^ cure 
 under three separate commissions, or under one joint com- 
 mission against the three partners (4-) ), the declaration was 
 held good, on motion in arrest of judgment after verdict ; 
 for it did not appear by the record, under hoxv many com- 
 missions the assignees actually claimed. (5) 
 
 In an action by assignees under a joint commission Mode of 
 against A. and B., the declaration was for money had and declaring 
 received by the defendant to the use of A. and B. before assignees 
 they became bankrupts, and for money had and received where 
 to the use of the plaintiffs as assignees of A. and B. after crned'be- 
 their bankruptcy : — the evidence was, that A. committed tween the 
 an act of bankruptcy a few days before B. committed one, ^^^^ 
 and that a clerk of the bankrupts between these acts of ruptcy of 
 bankruptcy paid to defendant 558/., and after both acts of ^^^ ^^^' 
 bankruptcy 51. more; — it was held, that under this declar- partners, 
 ation the assignees were only entitled to recover the 5l. 
 paid after the bankruptcy of both partners, and not the 
 558/. paid before the bankruptcy of B. ; though it seems, 
 that if they had declared for money had and received to 
 
 (1) Smith V. Oriel, 1 East, 367. (4) A commission, however, may 
 Fox V. Hanbury, 2Cowp.445. ; and now by section 16. of the new act, 
 see Ramsbottom v. Lewis, 1 Camp, be issued against one or more mem- 
 279. bers of a firm. 
 
 (2) Smith V. Stokes, 1 East, 363. (5) Strcatjield v. Halliday, 5 T. 
 
 (3) Hancock v. Hayiuood, 3 T. 11.779. 
 R. 435.
 
 746 
 
 OF ACTIONS AT LAW. 
 
 [Ch. 18. 
 
 Against (he their use as assig?iecs of A., they might then have recovered 
 "^'^•^- one moiety of the 558/. paid between the two acts of bank- 
 ruptcy. (1) 
 
 When as- 
 signees 
 may main- 
 tain trover 
 against the 
 sheriff. 
 Cannot 
 have tres- 
 j)ass before 
 assign- 
 ment. 
 
 May have 
 trover 
 against 
 the plain- 
 tiff suing 
 out the 
 execution, 
 or the 
 vendee of 
 the goods. 
 
 The property of a bankrupt being vested in his assignees 
 by relation from the act of bankruptcy, — if a sheriff, there- 
 fore, takes the bankrupt's goods in execution after an act of 
 bankruptcy, and afterwards sells them, the assignees may 
 maintain trover against him. But they cannot have trespass — 
 not even where the sheriff levies, or pays over the money, 
 after an act of bankruptcy, of which he has notice (2); 
 for trespass cannot be maintained, miless the plaintiff had 
 {d the time when the trespass is alleged to be committed, 
 either an actual or a constructive possession of the thing 
 which is the object of the trespass; and the assignees 
 (though they have by the assignment a right given them 
 which relates back to the act of bankruptcy, so as to avoid 
 all mesne incumbrances) have not such a possession as to 
 bring trespass for an act done before such right was given 
 them ; for no defendant can be made a trespasser by 
 relation. (3) The assignees, however, may also have trover, 
 or assumpsit, either against the vendee of the sheriff — or the 
 plaintiff in the original action, if he has received the money 
 of the sheriff. (4) Thus, where a bankrupt after the act of 
 bankruptcy was arrested ujx)n a ca. sa.y and placed goods 
 in the hands of the sheriff's officer to raise money upon 
 them, who accordingly pledged them, and five weeks after- 
 wards paid over the amount to the defendant, — it was 
 held, that the assignees might recover the amount of money 
 paid to the defendant in an action for money had and 
 received, although the defendant was not privy to the 
 taking of the goods by the sheriff's officer, and although 
 the money paid to the defendant was not the identical 
 
 (1) Smith V. Goddard, SB.&P. 
 465. 
 
 (2) Cooj)er v. Chittij, 1 Burr. 20. 
 Smith v. Milles, 1 T. R, 475. Lech- 
 
 mere v. Thorowgood, Comb. 125. 
 3 Show. 12. 1 Mont. 474, 
 
 (3) Per Ashurst J. 1 T. R. 480. 
 
 (4) Kitchi^i V. Camjibcll, 3 Wils. 
 504, Cole v. Davics, 1 Ld. R. 724.
 
 Sect. 2.3 OF ACTIONS AT LAW. 747 
 
 money raised by the pletlge.(l) The assignees may like- Against the 
 
 wise bring trover against the plaintiff in the action, if he * '"^' 
 
 intermeddle with the sheriff in any way — such as by being 
 
 in company with the officer at the time of the execution, or 
 
 by giving a bond to the sheriff (2); and, in trover against 
 
 the plaintiff, the sheriff need not be joined in the action. 
 
 Where after an act of bankruptcy the sheriff' seized What 
 
 and removed the goods to a broker's, and the assignees "'""""^^ 
 " . . . ° to a cow- 
 
 afterwards served a notice upon him not to sell, in conse- version by 
 
 quence of which the goods were never sold, but remained ^'^® sheriff, 
 at the broker's, — it was held, that the removal of the 
 goods was a sufficient conversion, and that the notice did 
 not amount to any admission that they had not been con- 
 verted. (3) So, in a case where the sheriff legally took 
 goods under one execution, the proprietor of which after- 
 wards became bankrupt — and then sold enough to satisfy 
 both that execution and also another execution, which 
 being delivered to him offer the act of bankruptcy was 
 void, — it was held, that the sale of goods of greater 
 value than was sufficient to satisfy the j^rs^ execution was a 
 tortious conversion, the sheriff having no right to sell more 
 than was necessary ; and that trover was the proper form of 
 action by the bankrupt's assignees, to recover the value of 
 such of the goods, as were sold after the sheriff had raised 
 money enough to satisfy thej'f;'^^ execution. (4) 
 
 The sheriff, however, will be safe from any claim by the When the 
 assignees, if he levies before the act of bankruptcy, and after- f'l^"^ will 
 wards pays the money over to the plaintiff' without any notice from the 
 of the act of bankruptcy ; for, as he has a right to \&s'^.i he '^|^i"'s of 
 is bound to pay over the money to the person at whose sit^nees. 
 suit the execution is issued, the whole being considered in 
 law as one act ; and it would be inconsistent to say that 
 
 (1) Allansony. Atkin&on,\M..&i [o) Wyatt v. Blades, 3 Camp, 
 S. 583. 395. 
 
 (2) Rush V. Baker, 2 Str. 996. (4) Stead \. Gascoignc, s'Tavmi. 
 Rull. N. P. 41. Menham v. Ed- 527. 
 
 monson, 1 Bos. & P. 569.
 
 74-8 
 
 OF ACTIONS AT LAW. 
 
 [Ch. 18. 
 
 Against the 
 sheriff. 
 
 When the 
 Court will 
 assist him. 
 
 Fraction 
 of a day. 
 
 he liad levied legally, but had j-jazW it illegally. {\) And 
 when the money has been paid over by the sheriflp before 
 the commission, the Court will not assist the assignees upon 
 motion, in'giving effect to the relation of the bankruptcy, — 
 so as to make the sheriff pay over to them money levied 
 after an act of bankruptcy (by lying in prison), but before 
 the time to complete the act of bankruptcy expired. (2) 
 The Court, too, will in some cases even notice the fraction 
 of a day in favor of the sheriff; as in a case where, after 
 the sheriff took possession under a fi. fa., the defendant at 
 a later hour of the same day surrendered in discharge of 
 his bail, and afterwards lay in prison the period of time 
 sufficient to constitute an act of bankruptcy, — it was held, 
 that the sheriff having entered in fact before the time from 
 which the bankruptcy was to be computed, the assignees 
 were not entitled to recover. (3) And, in all cases, if 
 the sheriff acts fairly, and is under difficulties how to con- 
 duct himself, the Court will endeavour to help him, as 
 far as it is possible. Thus, if he is reasonably doubtful 
 about the property, the Court will give him time to make 
 his return, or compel the parties to file a bill of inter- 
 pleader, or oblige the assignees to prove the act of 
 bankruptcy and the assignment. (4) And in one case, 
 where the sheriff was made a defendant, and neither 
 the execution creditor, nor the assignees, would in- 
 demnify him, the Court directed the declaration to be 
 amended, by inserting the name of the execution creditor, 
 instead of that of the sheriff, as the defendant; directing 
 
 (l) Vernon v. Hanker/, 2 T. R. 
 121. per Duller J.; and see Stead 
 V. Gascoigne, 8 Taunt. 527. It has 
 been said, that the court of Ex- 
 chequer, in a case which is not 
 reported, have held the sheriff 
 liable in trover, though he seized., 
 sold, and paid over the money 
 before the commission issued, and 
 before any notice of it; saying, that 
 this necessarily followed from the 
 
 case of Cooper v. Chitty, for that it 
 was an unlawful interference with 
 another's goods. Potter v. Starkie, 
 cited in argument, 4 M. & S. 260. 
 The seizure, however, in this case, 
 must be understood to have been 
 after the act of bankruptcy. 
 
 (2) Clarke V. Ryall, B1.642. 
 
 (3) Thomas v. Desanges, 2 B. & 
 A. 586. 
 
 (4) 1 Burr. 57.
 
 Sect. 2.] OF ACTIONS AT LAW. 749 
 
 also that the defendant should plead mstajiter, and admit Against tke 
 upon the trial the taking oF die goods ; and that the ^ ^^'''^' 
 
 sheriff should be discharged from all responsibility, upon 
 selling the goods, and bringing the money into court, 
 having apprized the parties of the time and place of sale ; 
 his right of poundage of course depending on the question 
 whether the execution was warranted. (1) The proper Where 
 course for the sheriff to iiursue (where both parties refuse R^ties re- 
 to indemnify him) appears to be, to apply to the Court for demnify 
 a rule to enlarge his return of thej'?. /«. from time to time — sheriff. 
 or, if an action has been commenced against him, then for a 
 rule to stay proceedings — until he is indemnified, or upon 
 such other terms as the Court may think the equity of the 
 case requires. This rule, however, can only be a rule nisi 
 in the first instance. (2) The Court will likewise, in favor 
 of the sheriff, take his return of a writ as made at the time 
 when it is made in fact, and not as at the return day speci- 
 fied in the writ. Thus, nulla bona will be a good return by 
 the sheriff to a Ji. fa. sued out against the bankrupt's 
 goods, though it is returnable within twenty-one days 
 from his lying in prison — if it be not actually returned until 
 he has laid in prison the whole of the twenty-one days, 
 and thereby become bankrupt. (3) 
 
 But if the sheriff voluntarily take a part, and elect (either when the 
 
 before or after the goods are sold) to which party he will Court will 
 , 1-1 • T 1 not inter- 
 
 pay the money — and receive also an express, or an implied, fg^e. 
 
 indemnity (for either is sufficient) from the party to whom 
 
 he so elects to pay it over, — he must then resort to that 
 
 party for security in case he is wrong; and the Court will, 
 
 in such case, not interfere in his behalf. (4) And where 
 
 the sheriff had kept the proceeds of the goods in his 
 
 possession for a length of time upon frivolous pretences, 
 
 the Court would not assist him by taking notice in a col- 
 
 ( 1 ) M' George v. Birch, 4 Taunt. (3) Coppendale v. Bridgen, 2 Burr. 
 
 585. 814. 
 
 (.2) King V. Bridges, 7 Taunt. (4) Aldridge v. Ireland, cited 
 
 494. 1 Moore, 45. Ledburi/ v. 1 Taunt. 273. 
 Smith, 1 Chit. Rep. 294.
 
 750 OF ACTIONS AT LAW. [Ch. 18. 
 
 Agaimtthe lateral way of a commission of bankrupt which afterwards 
 
 issued, so as to stay proceedings against him in an action 
 
 As to right for a false return, pending which he paid the money to the 
 to pound- . , , K 
 
 age. assignees. (1) 
 
 It is stated in one case that where the sheriff levied after 
 the harikrujptcy^ and the assignees had commenced an action 
 against him, the Court of King's Bench made the rule for 
 staying proceedings and indemnifying him, upon the terms 
 of his paying over the money levied, and the costs of the 
 action up to the time of the application, he being paid his 
 poundage and the costs of the cxeciition.{'2) But this last 
 condition seems rather an extraordinary one to impose on 
 the assignees, if the fact was that the sheriff (as is stated) 
 levied after the hanhruptcy ,- for, if that was the case, the 
 execution was altogether illegal, and he could then have 
 no right to poundage. (3) 
 When not Where a plaintiff withdrew his execution against the 
 '^'hl t ' bankrupt's goods, under a consent from him that there 
 turn writ should be a fresh levy, if the debt were not paid within a 
 without given time — and the goods were afterwards seized under an 
 execution at the suit of another plaintiff — upon which the 
 first plaintiff placed his warrant in the hands of the second 
 plaintiff's officer, who (the defendant having then become 
 bankrupt) left in the possession of the assignees all the 
 effects remaining, after satisfying the second plaintiff's 
 execution to the exclusion of the first ; — the Court held, 
 that though the effects were sufficient to satisfy both 
 executions, the sheriff could not be compelled to return 
 the first plaintiff's writ, until he should have been in- 
 demnified, and the prothonotary should have decided 
 which of the parties should indemnify him. (-i) 
 
 (1) TmbrcU\.Mil/s,lB\.205. (3) See M'George v. Mrch, 
 
 (2) Probiniu v. Roberts, ibid, ante, 749. 
 577- (4) Burr V. Freethi/, \ Bing. 71. 
 
 indemnity.
 
 Sect. 3.] EFFECT OF PREVIOUS SUITS. 751 
 
 Section III. 
 
 Effect of the Bankruptcy on Suits and Actions jprevionsli/ 
 commenced Jj/, or brought against, the Bankrupt. 
 
 If the plaintiff or defendant in a suit in equity becomes Suits in 
 bankrupt, it seems that the suit ( 1 ) does not thereby Xte'd'bv 
 absohitely abate, but tiie assignees may proceed in it in bank- 
 the name of the bankrupt. This point, however, has ruptcy of 
 been differently ruled by Lord Thurlow, who was of tiff. 
 opinion, that the bankruptcy of a sole plaintiff so far 
 put an end to the suit, that the assignees could not 
 add to it by a mere supplemental bill, but that they must 
 file another original bill in the nature of a supplemental 
 bill. (2) But subsequent cases appear to have established But as- 
 
 the former decision of Lord Hardwicke, namely, that the s'g"^<^* 
 
 •" must file 
 
 suit does not abate by the bankruptcy of the party (3); a supple- 
 in one of which, indeed, it is holden, that where a de- ™.f"'^^ 
 fendant becomes bankrupt, the plaintiff cannot even move 
 to dismiss his own bill without paying costs. (4?) This, 
 however, seems a great hardship upon the plaintiff; as the 
 defendant may move to dismiss the bill '■mth costs for want 
 of prosecution, and thus compel the plaintiff to go on with 
 the suit, although he may really wish to abandon it and 
 come in under the commission. (5) 
 
 A plaintiff in equity is differently situated from a Difference 
 plaintiff at law — the judgment against the latter being J^j^tvveen 
 only for the costs, whilst the decree against the former ment 
 may be for ati account likewise, and also to vay a balance. ''^^3"^'^ * 
 
 „/ . 1 £• r 1 • -/r • • , 1 plaintiff at 
 
 1 he assignees thererore or a plamtin in equity, who has law and in 
 
 equity. 
 
 (1) Anon. 1 Atk. 263. Carrick, Bramhall v. Cross, cit. 
 
 (2) Bellas V. Daiuson, 2 Anstr. ibid. Williams v. Kinder, 4Ves. 
 458. in note, and cit. C. B. L. 545. 587. 
 
 Lingard v. Webb, 3 Bro. 435. ; and (4) Rutherfordw Miller, 2 Anstr. 
 
 see Harrison v. Ridley, 2 Com. 458. 
 
 Rep. 589. Mitf. 62. (5) Monteitk v, Taylor, 9 Ves, 
 
 (3) Davidson v. Butler, 1 C. B. 615.' 
 L. 545. 2 Anst. 460. n. Tail v.
 
 752 
 
 EFFECT OP PREVIOUS SUITS, 
 
 [Ch.l8. 
 
 Present 
 practice 
 when the 
 defendant 
 moves to 
 dismiss the 
 bill. 
 
 When 
 money or- 
 dered to 
 be paid to 
 assignees, 
 without a 
 supple- 
 mental 
 bill. 
 
 As to bills 
 previously 
 filed by a 
 bankrupt 
 for an in- 
 junction. 
 
 become bankrupt, are only |>ermittcd to take advantage of 
 the proceedings by making themselves parties to the suit, 
 and filing a supplemental bill ; for a court of equity requires 
 a substantive plaintiff, who may abide such decree as may 
 be made. (1) Thus, though the suit is not (strictly speak- 
 ing) abated, it becomes by the bankruptcy of the plaintiff as 
 defective as if it were. Upon a motion, however, to dismiss 
 the bill for want of prosecution, the Court has in some 
 instances, given the assignees a month to adopt the suit by 
 filing a supplemental bill, previous to a final application 
 that the bill should be dismissed. (2) 
 
 The practice, as collected from the modern decisions, 
 seems to be, to order a supplemental bill to be filed by the 
 assignees within a fortnight, or that the bill be dismissed 
 without costs (3); and the proper mode of making the ap- 
 plication is by special motion, of which notice should be 
 given to the assignees. (4) The practice in the Exchequer 
 is the same, in this respect, as that of the Court of Chan- 
 cery. (5) But in one case, where money was ordered 
 by a decree to be paid to the plaintiff!, who afterwards be- 
 came a bankrupt, and he and his assignees applied by pe- 
 tition, that the money might be paid to the assignees — the 
 sum being too small to bear the expense of a supplemental 
 bill, — Lord Thurlow ordered it to be paid to the assignees, 
 without such a bill being filed. (6) 
 
 An order ?iisi obtained by a defendant for dissolving an 
 injunction will be made absolute, notwithstanding the 
 plaintiff becomes a bankrupt, unless the plaintiff shows 
 cause. (7) And where a bill was filed by the plaintiff in 
 the Exchequer for an injunction, and he afterwards became 
 a bankrupt, the bill was upon motion ordered to be dis- 
 
 (1) 4Ves. 588. 
 
 (2) Mumford v. Randall, 1 Rose, 
 196.; and see Monteith v. Taylor, 
 9 Ves. 616. Sellers v. Daivson, 
 Dick. 758. Ex parte Barry, 1 Dick. 
 81 Hall V. Chajmtan, ibid. 348. 
 18 Ves. 424. 4 Madd. 171. 
 
 (3) French v. Barton, 18 Ves. 
 
 423. Wheeler \. Malin, 4 Madd. 
 171. Porter v. Cox, Duck. 469. 
 5 Madd. SO. 
 
 (4) Buck. 469. 
 
 (5) Fowler's Exchequer, vol. i. 
 286. 
 
 (6) Setcole v. Hcaly, 2 Bro. 322. 
 
 (7) 1 Atk. 263.
 
 Sect. 3.] EFFECT OF PREVIOUS SUITS. 753 
 
 missed with costs for want of prosecution, the Lord Chief 
 Baron saying, that it was the course of practice in that 
 Court to charge the bankrupt with costs according to the 
 circumstances of the case. (1) 
 
 After the usual decree for an account against executors. As to filing 
 one of the defendants became bankrupt. The assignees ^'|,,^t^i 
 by petition prayed, that they might be at liberty to go bill. 
 before the Master upon taking the accounts, and be ad- 
 mitted on behalf of the bankrupt's creditors to support his 
 discharge. The registrar declined drawing up the order, 
 objecting that the suit being abated by the bankruptcy, the 
 plaintiffs could not proceed in the accounts, until they had 
 filed a supplemental bill in the nature of a bill of revivor, — 
 and the Lord Chancellor upon this refused to make the 
 order. (2) Where assignees of a defendant have been brought And costs 
 before the Court by supplemental bill, they will be liable to ^^'■^*'"- 
 the costs of the whole cause if they improperly resist the 
 plaintiff's demand : but in a case where the plaintiff had 
 made no application to them before filing the supplemental 
 bill, the Court did not give costs against them. (3) 
 
 In actions at La'w, also, though the bankruptcy of the In actions, 
 
 plaintiff after action brought is strictly no absolute abate- "6'«^'"';^"t 
 * . . "i''^y plead 
 
 ment of the suit (4), and the action has been occasionally the bank- 
 permitted to^ be continued by the assignees in the name J"'^'P'^'^>' '" 
 of the bankrupt, — yet this must now be taken, subject to 
 the right of the defendant to plead the bankruptcy m bar; 
 for where a defendant has a day in court to plead, and the 
 means likewise of pleading the plaintiff's bankruptcy, the 
 Court cannot refuse to give effect to a legal defence of 
 this nature. (5) And such a plea may be pleaded even 
 
 (1) Davison v. Butler, 1 C. B. (3) Whitcombv. Minchin, oMs-d. 
 L. 546. 91. 
 
 (2) Russell V, Sharp, 1 Ves. & (4) Bibbins v. Maiitell, sWils. 
 B. 500. The reason assigned by 358. Hewitt v. Mantcll, ibid. 572. 
 the registrar in this case is bad, Kretchman v. Beyer, 1 T. R. 465. 
 though the rule of practice was Waugh v. Austin, 3 T. R. 437. 
 correct; for it has been sufficiently (5) Kinnear v. Tarrant, 15 East, 
 shown that the bankruptcy of a 622. Barnes v. Maton, cit. ibid, 
 party is in ex^niy no abatement of 651. Biggs \. Cox, 4 B, &C. 920. 
 the suit. 
 
 3 c
 
 754 
 
 EFFECT or PREVIOUS ACTIONS. 
 
 [Ch. 18. 
 
 Where the 
 proceed- 
 ing before 
 the bank- 
 ruptcy was 
 by sci.fa. 
 
 Where 
 the parties 
 were at 
 issue. 
 
 Assignees 
 should 
 bring a 
 fresh 
 action . 
 
 Afterjudg- 
 ment as- 
 signees 
 may pro- 
 
 after the last continuance. Where the defendant, however, 
 has no day in Court to plead the bankruptcy in bar, there 
 it will not operate in abatement of the suit ; as where the 
 plaintiff obtained interlocutory judgment before his bank- 
 ruptcy, the action was held properly to proceed in his name 
 during the execution of the writ of inquiry, and until final 
 judgment — on the ground, that after the award of the writ 
 of inquiry, the defendant could not afterwards plead any 
 thing to the action. ( 1 ) In an early case in the books on 
 this subject, where the plaintiff became bankrupt after he 
 had recovered by scire facias, the Court ordered the special 
 matter to be entered, to entitle his assignees to the benefit 
 of the judgment on the sci. fa., without bringing a new 
 sci. fa. (2) And in one case, where the parties were at 
 issue, and notice of trial had been given, and tiie plaintiff 
 before trial became a bankrupt, the Court upon motion 
 permitted the trial to go on in the name of the bankrupt, 
 upon the assignees undertaking to pay the costs of suit, in 
 case a verdict should be given for the defendant. (3) 
 
 But the safest course appears to be — when the action is 
 commenced by the bankrupt previous to his bankruptcy, 
 and is in such a stage of proceeding as will enable the de- 
 fendant to plead the bankruptcy in bar — that the assignees 
 should not continue the proceedings in the name of the 
 bankrupt, but bring a fresh action (4) in their own names ; 
 for, if the defendant pleads the bankruptcy, the plea will 
 be good, notwithstanding the plaintiff replies, that the pro- 
 ceedings are continued by the assignees in the name of the 
 plaintiff for the use and benefit of the plaintiff's creditors, 
 and not for the use of the plaintiff. (5) Afttr judgment, 
 however, whether interlocutory (6) or final, the assignees 
 may make themselves parties to the record, by suing out a 
 
 (1) Bibbins v. Mantell. Hewitt 
 V. same, supra; but see Monk v. 
 Morris, Ventr. 193. 
 
 (2) Plummer v. Lee, 5 Mod. 88. 
 
 (3) Priddle v. Thomas, cited, 
 2 Wils. 373. 
 
 (4) Barnes v. Maton, cit. IsEast, 
 
 631. 
 
 (5) Kinnear V.Tarrant, 15 East, 
 624. 
 
 (6) Per Wihiiot C. J. 2 Wils. 
 375. Kretchman v. Better, 1 T. 
 R. 463.
 
 Sect. 3.] EFFECT OF PREVIOUS ACTIONS. 755 
 
 scire facias ad inquirendum, or quare execuiioncm non, as the ceed by 
 
 case may be; but they cannot do this in any intermediate ^'^'J"'' 
 
 stage of the proceedings. ( 1 ) Nor where a plaintiff even ^^^^P^ 
 " '^ o \ ' I where de- 
 
 recovers judgment — yet if the defendant brings a writ of fendant 
 
 error which is duly issued, allowed, and served before the ^rmgs a 
 1 . . „. , . . writ of 
 
 plaintiff's bankruptcy — can the assignees sue out a scire error. 
 
 facias on the judgment; for it would be bad, either as a 
 scire facias quare executionem non^ or as a sci.fa» to compel 
 an assignment of errors; as, in the first case, it would 
 appear (from the recital in the sci. fa.) that a writ of error 
 was depending, — and in the last, (independently of such 
 recital,) there would have been a proceeding since the judg- 
 ment. (2) But the assignees may sue out a sci. fa. on the 
 recognizance against the bail ; in which they should state, 
 that an assignment was duly made to them of the bank- 
 rupt's estate and effects ; though this omission can only be 
 taken advantage of on special demurrer. (3) And where a ^^^^^ 
 plaintiff after judgment became a bankrupt, and afterwards levies the 
 sued out execution, and the money was levied by the sheriff money 
 and brought into Court, — the Court in this case refused, execution 
 upon motion of the assignees, to order the money to be after the 
 paid to them — but consented to detain it, that the as- Ynutcv 
 signees might take out a scire facias against the defendant 
 to try the bankruptcy. (4) In another case, however, (as 
 we have already seen) where the plaintiff had judgment on 
 a. scire facias, the Court, upon motion, dispensed with a 
 fresh sci. fa. (5) 
 
 Where a defendant became bankrupt after the issuing Where a 
 and execution o^B.fi.fa., but before the sale of the goods ||"^"'^^°t 
 taken under it, and there was a variance between the^. fa. bankrupt 
 
 and the judgment, — the Court of King's Bench refused after the 
 
 issuinf? a 
 to allow the plaintiff to amend the f. fa., to make it con- fi, fa, 
 
 formable to the judgment. (6) 
 
 (1) Per Buller J. 1 T.R. 463. (5) Plumer v. Lea, 5 Mod. 88 j 
 
 (2) Ibid. ante, 754. 
 
 (3) Fletcher \. Pogson, SB.&C. (6) Hunt v. Pasman, 4 M. &S. 
 192. 329.; and see Paris v. Wilkinson, 
 
 (4) Monk V. Morris, Ventr. 1 93. 8 T. R. 155. 
 ] Mod. 93. 
 
 VCL, J. * 3 c 2
 
 756 
 
 CHAP. XIX. 
 
 OF THE EVIDENCE REQUIRED TO SUPPORT THE COMMISSION 
 IN ACTIONS BY, OR AGAINST, ASSIGNEES. 
 
 Section 1. Where Notice is given to dispute the Com- 
 mission. 
 
 2. Where a Party is not entitled to give such 
 
 Notice. 
 
 3. Where 7io Notice is given. 
 
 4. Where no Proof of the Title of the Assignees 
 
 is necessary. 
 
 5. As to the Admissibility of the Depositions and 
 
 Proceedings under the Commission. 
 
 6. Of the Competency of the Bankrupt and his 
 
 Wife as Witnesses. 
 
 7. Of the Competency of Creditors. 
 
 Former |t was formerly necessary in all actions, where the as- 
 t'o^proof '^^ signees either as plaintiffs or defendants claimed property 
 upon the under the bankrupt, to prove strictly the three requisites 
 to support the commission, viz. the trading, the act of 
 bankruptcy, and the petitioning creditor's debt — as well 
 as that the commission was regularly issued, and the as- 
 signment duly executed. Upon failure in proving any one 
 of these matters, (the proof of which adds considerably 
 to the costs of an action, and is often difficult to be esta- 
 blished by strict rules of evidence) the assignees were non- 
 suited, and thus frequently prevented from recovering a 
 just debt due to the bankrupt's estate. To provide in some 
 measure for this evil, the 49 G. 3. c. 121. s.lO, 11. enacted, 
 that the commission and proceedings should be evidence 
 
 trial.
 
 Ch. 19.] OF EVIDENCE, &c. 757 
 
 of the petitioning creditor's debt, the tradkig, and act of 
 bankruptcy, unless the other party gave notice of hi^ 
 intention to dispute them. But this, it seems, did not 
 afford an effectual check to the vexatious defence so fre- 
 quently set up to actions brought by assignees, notwith- 
 standing the defendant was liable to pay the costs of 
 forcing them to prove these several matters on the trial. 
 The legislature has, therefore, now thought it expedient to 
 enact, that in certain cases no such proof shall be required 
 from the assignees ; and in others, that the depositions of 
 these matters before the commissioners shall be conclusive 
 evidence; confining, in reality, the former general obligation 
 of proof under the old system, to what may now be consi- 
 dered as excepted cases under the new. 
 
 Thus by section 90. of the new act, it is declared, that in Enactment 
 
 any action by or against an assignee — or any commissioner ^.^ *^ "?' 
 .,, PI .. ticeofm- 
 
 or person actmg under the warrant of the commissioners, tention to 
 
 for any thing done as such commissioner, or under such dispute the 
 warrant — no proof shall be required at the trial of the sion in 
 petitioning creditor's debt, the trading, or act of bankruptcy, actions, 
 unless the other party in such action shall (if defendant, 
 at or before pleading — and, if plaintiff, before the issue 
 joined) give notice in writing to such assignee, com- 
 missioner, or other person, that he intends to dispute 
 some and which of such matters. And the party giving 
 notice renders himself liable to the costs occasioned by it, 
 if the disputed matter is proved by the other party upon 
 the trial. 
 
 By section 91., also, a similar provision is made as to In suits m 
 suits in equity by or against the assignees, unless the ^'l^'^^y* 
 party in the suit shall, within ten days after rejoinder, 
 give notice in writing to the assignees of his intention to 
 dispute ; in which case, if the assignees shall prove the 
 matter so disputed, the costs occasioned by the notice are, 
 in the discretion of the Court, to be paid by the party 
 giving it. 
 
 3 c 3
 
 75fi 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 Difference 
 between 
 former and 
 present 
 enact- 
 ments. 
 
 When de- 
 positions 
 made con- 
 clusive 
 evidence. 
 
 These two clauses, it will be perceived, are not (like 
 those in the former statute ( 1 ) ) confined to actions and 
 suits by or against the assignees — but extend to those against 
 the commissioners^ or any 'person acting under tliem. There 
 is, also, a material difference in the enactments ; the former 
 statute providing, that in case of no notice being given, 
 " the commission, and the ■proceedi7igs of the commissioners 
 under the same, shall he evidence to he received" of the peti- 
 tioning creditor's debt, the trading, and act of bankruptcy — 
 while the present statute declares, that " 7io proof shall be 
 required at the trial" of those matters. 
 
 But when the assignees sue for a debt or demand for 
 which the bankrupt might himself have sued, the present 
 statute takes away from the defendant all power whatever 
 of contesting those proceedings after a certain period al- 
 lowed the bankrupt to dispute the validity of the commis- 
 sion ; for by section 92. it is declared, that if the bankrupt 
 shall not (if he be within the United Kingdom at the 
 issuing of the commission) within two calendar months 
 after the adjudication — or (if out of the kingdom) then 
 within twelve calendar months — give notice of his intent 
 to dispute the commission, and proceed therein with due 
 diligence, the depositions taken before the commissioners 
 of the petitioning creditor's debt, the trading, and act of 
 bankruptcy, shall be conclusive evidence of the matters 
 therein respectively contained in all actions or suits brought 
 by the assignees for any debt or demand, for which the 
 bankrupt might have sustained any action or suit. 
 
 In treating of these several enactments, it is proposed to 
 consider, jfrs/, the evidence necessary to be adduced by 
 the assignees where the defendant is entitled to give, and 
 does give, due notice to dispute the petitioning creditor's 
 debt, or any of the other requisites to support the com- 
 mission. 
 
 Secondly, Where the defendant is not entitled to give 
 such notice. 
 
 Cl) 49G.3. C. 121.S. 10, 11.
 
 Sect. 1.] IN ACTIONS BY AND AGAINST ASSIGNEES. 759 
 
 Thirdly^ Where no notice has been given by him. 
 
 And lastly, to consider tliose cases, wiiere the defendant is, 
 by his own acts, wholly estopped iVoni tlispiitiiig the title of 
 the assi<inees. 
 
 Section I. 
 
 Where the Defendant h entilled to give^ and docs give Notice 
 to dispute the Comtuission. 
 
 In all actions brought by the assignees for any debt or Difference 
 demand, for which the bankrupt inight himself have S7icd if he ^^ ^?.V^' 
 had not been bankrupt, the defendant will only be entided mited for 
 
 to give notice to dispute the commission within the same S'^mg 
 
 notice. 
 periods, as those allowed the bankrupt for the same pur- 
 pose ; in of/ier actions^ the defendant may use his own dis- 
 cretion in giving such notice ; but he does so in each case at 
 t\ie hazard of costs. The defendant, however, can only give 
 no'.ice in actions where the assignees^ or commissioners^ or the 
 pevions acting under their ijoarrant, are parties to the action. 
 For in an action between third persons, if the validity of a No notice 
 comnission of bankruptcy comes incidentally into question *^?" ^^. 
 as a g-ound of defence, it must be regularly proved in the action be- 
 formei manner required by law. ( 1 ) But the statute is not tween 
 limitedto cases where the assignees, or the commissioners, sq^s. ^^^' 
 are namid as such upon the record ; but extends to actions, 
 where tie opposite party knows that they make out their 
 title, or ;heir justification (as the case may be), under the 
 conmission. {'2) For before the former statute, though the 
 assignees might not have stated themselves to be such in 
 tie declaration, yet if they had no title to recover, except 
 a assignees, they were held bound to prove the petitioning 
 reditor's debt, and the other requisites to support the 
 
 (l) Doe v. Liston, 4 Taunt. 741. (2) Simmonds v. Knight, 3 Camp. 
 
 251. Rowe V. Lant, Gow. 24 
 
 3 c 4
 
 760 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 Where no- 
 tice given . 
 
 But may 
 where as- 
 signees are 
 co-defend- 
 ants. 
 
 As to time 
 of giving 
 notice. 
 
 Where 
 defendant 
 omits to 
 give no- 
 tice, 
 though 
 intending 
 to dispute. 
 
 commission. (1) The statute, also, is not confined to the 
 case where the assignees are the otili/ defendants on the re- 
 cord; for if there are other co-defendants who justify as 
 their servants, the statute equally applies. (2) 
 
 As to the time of giving the notice, — the statute, it will 
 be observed, in actions at law, requires the notice on the 
 part of the plaintiff" to be given before issue joined. A 
 notrce, therefore, delivered at the time of delivering the 
 issue with notice of trial, is clearly sufficient. (3) The 
 notice by the defendant being required to be given at or 
 before pleading, — if he has therefore omitted to give notice 
 before pleading, and means to dispute the several matters 
 above specified, the regular course is to apply to tlie 
 Court for leave to withdraw his plea, and plead de novo 
 with such notice ; the last plea will then be considered the 
 plea of the party to all purposes, and on notice given at the 
 time of pleading, it will be a sufficient compliance with tie 
 statute. (4) But, without an application to the Court, he 
 cannot regularly withdraw a plea once pleaded, and deliver 
 it again with a notice, though the time for pleading has not 
 even expired. (5) So in a suit in equity, the defencant 
 has (by analogy to the practice at law) been permitted to 
 withdraw his rejoinder, and rejoin de nmo for the pu'pose 
 of giving notice ; but the Court require from him ai affi- 
 davit, that (according to his information and belie) it is 
 essential to the justice of the case. (6) But, as this is 
 merely an indulgence to the defendant, — in a simlar case 
 where the witness to the act of bankruptcy was cbad, the 
 permission was only granted, upon terms of admitting the 
 deposition of the deceased witness. (7) 
 
 (1) Cowp. 570. 
 
 (,2) Gilman v. Cousins, 2 Star. 
 182. 
 
 (3) Richmond v. Heapy, 4 Camp. 
 207. 
 
 (-1) Willock v. Smith, 2 Camp. 
 184. Clarkson v. Doodds, ibid. n. 
 Decharme v. Lane, 2 Camp. 324. 
 
 Radmore v. Gould, Wightw. 8(. 
 Gardner v. Slack, 6 Moore, 489. 
 
 (5) Poole V. Bell, 1 Star. 328. 
 
 (6) Berks V. Wigan, 1 V. & B. 
 221. 
 
 (7) Brickwood v. Miller, 1 Mc- 
 riv. 6.
 
 Sect. 1.] IN ACTIONS BY AND AGAINST ASSIGNEES. 761 
 
 With respect to the service of the notice — service on the Where no- 
 assignees in person is not necessary, a deUvery of the notice *^^_£^^' 
 to their attorney being the best for all practical purposes, As to scr- 
 and being also the proper mode of service ; for leaving p^o^of " f 
 it with a servant at the dvk^ellinfy-house even of the assignee notice, 
 is not a good service. (1) In a suit in equity, service of the 
 notice may be proved by affidavit upon the hearing of 
 the cause. (2) The notice on the part of the defendant is 
 not to be considered as part of his evidence in the cause, 
 but should be proved at the beginning of the trial ; and as 
 soon as the commission and proceedings are produced by 
 the plaintiff, the Court will then immediately compel the 
 latter to support the commission, in the same manner as 
 he was formerly obliged to do, viz. by strict proof of the 
 petitioning creditor's debt, and the other requisites. (3) 
 
 With respect to proof of the petitioning creditor's debt. As to proof 
 
 (as to the validity of which the reader is referred to a former . .. P^" 
 
 . . • 1 /> 1 titionmg 
 
 chapter (4) ) — it must be proved, in the first place, to have creditor's 
 
 been contracted pn'or to some act of bankruptcy commit- ^'^^*'- 
 ted by the bankrupt (5) ; and it requires also to be substan- 
 tiated by the same kind of evidence, as would be required 
 in an action by the creditor against the bankrupt himself. 
 Therefore, where the debt arose upon a bond, an acknow- Where on 
 ledgment of the bankrupt to a witness, that he owed the ^ "^o""- 
 debt upon which the commission was sued out, will not su- 
 persede the necessity of calling the subscribing witness. (6) 
 So, if the debt of the petitioning creditor is on a bill of ex- gin of 
 change, drawn by the bankrupt and indorsed by him to exchange. 
 the petitioning creditor — besides adducing evidence that it 
 was indorsed before the commission — it will be necessary, 
 in order to prove the debt, to go regularly through the 
 several proofs required in an action by an indorsee against 
 
 (1) Howard v. Ramsbottom, (4) Sec ante, Ch. IV. 
 "Taunt. 526. (5) See Scclion 19. Ex parte 
 
 (2) Scclion 91. Wainman, C. B. L, 23. 
 
 (5) Decharmc v. Lane, 2 Camp. (6) Abbott v. Pluinbc, 1 Doug. 
 324. 216.
 
 762 
 
 OF EVIDENCE 
 
 [Cb. 19. 
 
 Petitioning 
 
 creditoi-'s 
 
 debt. 
 
 Promis- 
 sory note. 
 
 Banker's 
 check. 
 
 Accept- 
 ance of 
 bill, where 
 notice to 
 prove the 
 consider- 
 ation. 
 
 the drawer. For instance, it must be shown that the 
 drawer had sufficient notice of the dishonour of the bill, 
 or that the notice of the dishonour was, under the circum- 
 stances of the case, dispensed with. And, for this purpose, 
 an acknowledgment by the bankrupt (the drawer) in a con- 
 versation between him and the petitioning creditor (the in- 
 dorsee or payee) — that the bill would not be paid, but would 
 come back to him — has been deemed sufficient evidence, 
 although the acknowledgment was made after the act(l) 
 of bankruptcy. So, the date of a promissory note, which 
 was relied on as the petitioning creditor's debt, (where the 
 note was made by the bankrupt prior to the act of bank- 
 ruptcy) has been considered as presumptive evidence that 
 the note existed before the act (2) — though in this case it 
 was held, that no declaration of the bankrupt stihseqimit to 
 his bankruptcy would be admissible in evidence to prove it. 
 But where the petitioning creditor had, upon an appli- 
 cation for a loan from a bankrupt, delivered to him a 
 check on his bankers for 100/., which check had got back 
 again to the hands of the petitioning creditor, as if satis- 
 fied, but he was unable to give positive proof that the 
 check was actually paid, — the check of itself was in this 
 case held not sufficient evidence of a petitioning creditor's 
 debt. (3) So, where the proof of the debt rests merely 
 upon the prima facie evidence of the acceptance of a bill 
 of exchange by the bankrupt, and the defendant gives 
 the assignees notice to prove the consideration, it will 
 be advisable for them to do so ; for, though a plaintiff 
 generally is not bound to prove the consideration for the 
 defendant's acceptance, yet if there are circumstances of 
 suspicion as to the consideration, and the plaintiff has 
 notice that he will be required to prove it, the jury may 
 pronounce the debt collusive, though no direct evidence is 
 given to impeach the acceptance ; for they have a right to 
 
 ( 1 ) Brett V. Lcoett, 1 5 East, 2 1 5. 
 
 (2) Taylor v. Kinlock, 1 Star. 
 176. 
 
 (.>) Bleasby v. Crossley, 2 Car- 
 riug. & P. 215.
 
 Sect. 1.] IN ACTIONS BY AND AGAINST ASSIGNEES. 763 
 
 require, from the aspect of the whole transaction, something Where no- 
 to corroborate the prima facie proof of hand-writing. (1) ^^ g^""^" - 
 And where the petitioning creditor is the indorsee of a 
 bill or note, the date of the instrument then affords no 
 presumption as to the commencement of the debt ; but the 
 actual time of the indorsement in this case is material, and 
 ought to be satisfactorily proved. (2) 
 
 An acknowledgment by the bankrupt, that he owed the As to ac- 
 petitioning creditor lOOl. before the act of bankruptcy — meruofthe 
 though such acknowledgment might be made on the very debt by the 
 day the act of bankruptcy was committed, or indeed at ^" '^"'^ ' 
 any time before the suing out of the commission — was held 
 by Lord Kenyon sufficient evidence of the existence of 
 the debt. (3) But this position, as well indeed as the case 
 of Brett V. Levetf, appears to be considerably shaken by 
 subsequent decisions ; in which the rule seems to be laid 
 down, that declarations or admissions made by the bank- 
 rupt after the act of bankruptcy, are not admissible evi- 
 dence on the part of the assignees in support of the com- 
 mission. (4) And where, on an indictment against a bank- 
 rupt, the petitioning creditor's debt was alleged to be due 
 to A., B., and C, surviving executors of D., — it was ruled 
 to be necessary (besides proving them to be executors) 
 to show, that they all assented to act in discharge of the 
 trust — and that a general admission by the bankrupt, of a 
 debt due to the executors of D., would not supply the 
 defect. (5) But, as the bankrupt's declarations before the 
 act of bankruptcy are admissible evidence in support of 
 the petitioning creditor's debt, so they are likewise evi- 
 dence to disprove it. Thus, in an action by the assignees 
 against the sheriff*, the bankrupt's declarations before the 
 bankruptcy — showing that the commission had been founded 
 
 (1) Abraham V.George, 11 Price, Watts v. Thorp, 1 Camp. 376. 
 423. Taylor v. Kinlock, 1 Star. 176. 
 
 (2) Rose V. Rowcrqft, 2 Camp. Smallcombe w. Bruges, IsPri. 156 
 245. Sanderson v. Laforest, 1 Carring. 
 
 (3) Dowton V. Cross, 1 Esp, 168. 46. 
 
 (4) Rohson V. Kemp, 4 Esp. 233. (5) Rose v. Barnes, 1 Star. 243.
 
 J6i' 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 Petitioning 
 
 creditor's 
 
 debt. 
 
 Entries in 
 books, &c. 
 
 Deed of 
 reference 
 between 
 partners. 
 
 in a collusion between himself and the petitioning creditor 
 to create an apparent petitioning creditor's debt — are re- 
 ceivable in evidence against the assignees, though the 
 petitioning creditor vi^as not one of the assignees under 
 the commission, fl) 
 
 An entry in the bankrupt's books (2), or an account 
 signed by the bankrupt — in either of which he charges him- 
 self with a balance brought over on a day before the bank- 
 ruptcy — will be admissible evidence of the debt, provided it 
 is shown, that the entry was made, or the account alloxoed, 
 by the bankrupt before the bajikruptcy ; but this must be 
 proved by extrinsic evidence, and independent of the 
 writing. (3) It will not, however, in any case be absolutely 
 necessary to prove, that the debt continued from the pe- 
 riod when it was so admitted, down to the time of the 
 bankruptcy ; for when it is shown to have once existed 
 prior to the act, its continuance will be presumed. (4') But 
 where it was necessary to prove a good petitioning cre- 
 ditor's debt on the 20th May, — it was held not sufficient to 
 show, that on the 20th January preceding a sum of 700/. 
 was due from the bankrupt — there being stibseqjieni receipts 
 and payments and other continuing transactions between 
 the petitioning creditor and the bankrupt ; for after a period 
 of three months it was considered impossible to say, under 
 these circumstances, whether 1000/. or 5/. was really due. (5) 
 
 Where a petitioning creditor's debt was to be proved, by 
 a deed of reference between himself and other persons 
 (with whom he had been in partnership, and one of whom 
 was the bankrupt) of all accounts between them, or any 
 two of them, and also by an award of a separate debt of 
 above 100/. due from the bankrupt to the petitioning cre- 
 ditor; — it was held, that it was not sufficient to prove the 
 
 ( 1 ) Thompson v. Bridges, 8 Taunt. 
 336. B Moore, .376. 
 
 (2) Eiucr V. Prcslon, Rep. temp. 
 Hard. 378. Watts v. Thorpe, 
 supra. 
 
 (3) Home V. Coryton, 4 Taunt. 
 560. 
 
 (4) Jackson v. /?-(t;j«, 2 Camp. 50. 
 
 (5) Grcsln/ v. Price, sCarring. 
 & P. 48.
 
 Sect. 1.] IN ACTIONS BY AND AGAINST ASSIGNEES. 7G5 
 
 execution of the deed b}' the petitioning creditor and the Where no- 
 
 Imnkrupt, with.out proving also the execution of it by the "^ g^^e^ '- 
 
 other partners, by whom it appeared on the face of it to have 
 
 been executed : for that the consideration of each to execute 
 
 his own submission was the submission of all the others ; 
 
 and without proof of that, the arbitrators had no authority 
 
 to make their award between any of the parties. (1) 
 
 Where the action is between third jmrties, but the Declara- 
 assignees are virtually parties to the suit — as in an action pptitioning 
 by a third person against a sheriff for a false return of creditor. 
 nulla bona, which the assignees give instructions to defend, 
 on the ground that at the time of the levy die party was a 
 bankrupt — a declaration by the petitioning creditor (who 
 was also in this case one of the assignees) made even subse- 
 quent to the suing out of the commission, that the bankrupt 
 did not in fact owe him 100/., has been held admissible 
 evidence of there being no petitioning creditor's debt to 
 support the commission ; on the ground that, though the 
 petitioning creditor once swore to the existence of a 
 debt of 100/., he might, upon a further investigation of 
 the accounts, have found that he was mistaken. (2) And 
 in a similar case, where the petitioning creditor was not 
 one of the assignees, Sir J. Mansfield said, " he had 
 no doubt that the admission of a petitioning creditor, 
 as to any fact respecting his debt, was good evidence 
 against the debt." (3) These decisions are, however, con- 
 trary to the principle laid down by Lord Eldon in several 
 cases, viz. that the petitioning creditor is pledged to the 
 validity of the commission, and ought not to be permitted 
 to controvert a proceeding which originates from him- 
 self (4) ; and they are also inconsistent with another case in 
 the Common Pleas, where it was held that the petitioning 
 creditor was estopped, by his affidavit of debt on suing out 
 
 (1) Antram v. Chace, 15 East, Harmer v. Davis, 1 Moore, 500. 
 209. contra. 
 
 (2) Doivdcn V. Fowle, 4 Camp. (4) Ex parte Glossop, 2 Rose, 
 38. 386. Ex parte Jackson, ibid. 188. 
 
 (3) Young V. Smith, 6Esp. 121. Ex parte Graves, 1 G. &J. 86.
 
 766 
 
 OF EVIDENCE [Ch. 19. 
 
 Trading, the Commission, from contending afterwards that the debt 
 
 was insufficient to support it. (1) And though some of 
 
 these cases appear to have been decided on the principle 
 of estoppel, and others on that of the competency of a 
 witness, it does really seem impossible to reconcile the 
 decisions. 
 
 As to proof With respect to the different trades and calhngs, which 
 oUradmg. ^^ nomine render a man liable to be made a bankrupt, and 
 the different acts which constitute in law a trading, the reader 
 is referred to a former chapter. (2) It may suffice here to 
 observe, that where particular employments or callings are 
 not specified in the statute, the general description in it of 
 persons liable to become bankrupt cannot be satisfied, unless 
 there be proved acts both of buying and selling {S), or of 
 buying and letting for hire — except, indeed, where the 
 trading sought to be established is by any of the new 
 general modes of trading specified in the statute — such as 
 the using the trade of merchandize by way of commission {^)i 
 or by the worhnatiship of goods or comrnodities — in which 
 case, both the acts of buying and selling, or of buying and 
 letting for hire, may be held unnecessary to be proved. And 
 whether a person of a particular description has used the 
 trade of merchandize, in the sense which the legislature has 
 affixed to the term — or whether a person once in trade has 
 actually ceased his trading — are both questions for the 
 determination of the judge upon the several facts found by 
 the jury. 
 By a Where the person belongs to a class which is excluded 
 
 farmer. ^y ^^le statute, as if he is a farmer, (who may notwith- 
 standing, as we have formerly seen, be a bankrupt, though 
 
 (1) Hamier v. Davis, 1 Taunt, chant for the orders he procured 
 577. for goods, and not being debited 
 
 (2) Chap. II. with the goods himself, the goods 
 
 (3) See Section 2. and Lord El- being supplied by the merchant to 
 lenborough's judgment in Stdtonv. the customer, was held not to be 
 Weeley, 7 East, 448. a trader. Per Abbott C. J. Doe v. 
 
 (4) Before the new act, a person Lawrence, 2 Carring. & P. 1^5. 
 receivinff a conwiission from a mer-
 
 Sect. 1.1 IN ACTIONS BY AND AGAINST ASSIGNEES. 767 
 
 not in the capacity or character of a. Janner) — the question Where no- 
 for the jury will be, whether the acts of buyinpr and selling ^' ^^ g^^en . 
 were incident to the enjoyment of the farm, or were done 
 collaterally, and with a view to profit. (1) To resolve this 
 question, the important consideration will be, what was the 
 nature of the acts themselves, and the use to which the 
 bought articles were applied. The acts of buying and 
 selling may be so frequent and so extensive, as evidently to 
 have no reference to the business of farming ; and may also 
 be transacted so publicly, and with such a manner and sem- 
 blance of trafficking, as to show a manifest intention in the 
 part}' to hold himself forth as a general dealer in the articles 
 bought and sold. On the other hand, they may be only 
 occasional acts, or incidental to the occupation of the farm ; 
 in which case, the supposition of his being a general dealer 
 in those articles, or of seeking his livelihood by buying and 
 selling them, will be wholly negatived. Buying, also, for 
 the express purpose of selling again is not decisive of the 
 question, (though in one case great stress was laid upon 
 such evidence (2) ); for it may be incidental to the occu- 
 pation of the farm, and to the farming business. The true 
 question, indeed, will always be, whether the farmer bought 
 with a view to make a profit as a trader, independently of 
 tlie occupation of his farm. (3) 
 
 Under the words " Dealer and Chajwian^^ commonly used Proof 
 in a commission, and the general statement that the bankrupt ""''^>" 
 got his living by buying and selling, evidence may be given « dealer 
 of any species of trading. (4-) Thus, where such general ^^^ <;','^P- 
 words were used in a commission, evidence of •' dealing in 
 Jiaps" was held admissible, though the commission described 
 the bankrupt as *' a dealer in cattle" (5) And an acknow- Acknow- 
 ledgment by the bankrupt, that he was in partnership "joith '^"g^^ent 
 
 ship. 
 
 (1) Stewart v. JBaU, 2 N. R. 79. (3) Patten V. Browne, 7 Taunt. 
 
 (2) Bartkohmeiu v. Sherwood, 409. 
 
 1 T. R. 573. in note ; but see Stew- (4) Ex parte Herbert, 2 Rose, 
 art V. Ball, 2 N. R. 8 1 . per Cham- 248. 2 V. & B. 299. Hale v. Small, 
 breJ. 2B. &B. 25. 
 
 (5) 2B.&B. 25.
 
 7CS 
 
 or EVlt)ENCE 
 
 [Ch< 19. 
 
 Jet of 
 bank- 
 ruptcy. 
 
 another as a trader, coupled with proof of his having given 
 directions in the concern, has been held sufficient evidence 
 to constitute a trading, though no express act of buying 
 and selling during the partnership, as to him^ could be 
 established in evidence. (1) In a late case, however, at 
 Nisi Prills^ Lord Chief Justice Best entertained some 
 doubt as to the correctness of this decision, though he 
 received the proof, giving the defendant leave to move to 
 enter a nonsuit. (2) 
 
 Proof of 
 act of 
 bank- 
 ruptcy. 
 
 The next fact to be proved is, that the bankrupt has 
 committed an act of hanlcru-ptcy. The several acts of 
 bankruptcy, some one of which it will be necessary to 
 establish in evidence, have been already enumerated in a 
 former part of this work. (3) The greater portion of them, 
 and indeed all those specified in the Zd section, must be 
 ** nsoith intent to defeat or delay creditors ,-" therefore the 
 iyiteiition of the party in doing the act, and not the conse- 
 quence of it, is the criterion to determine whether it amounts 
 to an act of bankruptcy or not. Thus, though no creditor 
 be in fact delayed, still the conduct of the party plainly 
 manifesting an intention to delay his creditors, will con- 
 stitute a positive act of bankruptcy (4), which does not 
 require the intent to be productive of the effect. The 
 intention will be, of course, more or less apparent, accord- 
 ing to the varying circumstances of each particular case. 
 In general, the previous conduct of the bankrupt, and his 
 declarations at the time of the state of his affairs, are the 
 strongest indications of what his motive is, in doing or 
 suffering the act insisted upon as an act of bankruptcy. 
 And though the delay of creditors was not the immediate 
 or principal object of the party, yet (as has been before 
 remarked (5) ) if that proves to be the necessary co7iscqiience 
 of his proceeding, it will be evidence of his intent, upon 
 
 (1) Parker v. Barker, 1 B. & B. 
 9. 5 Moore, 226. 
 
 (2) Bromley v. King, 1 Ryan & 
 M. 228. 
 
 (5) Chap. III. 
 
 (4) Ante, page 48. 
 
 (5) See ante, page 45.
 
 Sect. 1.] IN ACTIONS BY AND AGAINST ASSIGNEES. 7G9 
 
 the principle that every man must be presumed to foresee Where no- 
 and intend what is the inevitable consequence of his own ' ^^ g't'g" ' 
 act. (1) 
 
 The act of bankruptcy by beginning to keep house, we Keeping 
 have before seen (2), is usually proved by denial to a "O^'^- 
 creditor when the party is at home, such denial being 
 authorized by the bankrupt. But this, it will be recol- 
 lected, is merely as a medium of proof, and is not the ojily 
 evidence of the fact ; for if a trader has no clerk or servant, 
 the act cannot in that case be evinced through such a 
 medium. Therefore, where a trader shuts himself up in 
 his house, or secludes himself in any private apartment for 
 the purpose of avoiding the fair importunity of his cre- 
 ditors, who are thus deprived of all means of communi- 
 cating with him, he begi?is to keep house within the meaning 
 of the statute, and commits an act bf bankruptcy. (3) For 
 the denial to the creditor, as it is the cause of delay to him, 
 is merely (like every other act which necessarily produces 
 such a consequence) presumptive evidence of the bank- 
 rupt's intention to effect that delay, and not (abstracted 
 from all intention and design) a specific act of bankruptcy 
 in itself. A denial to several persons whom the bank- 
 I'upt's servant did not know, but whom from their frequent 
 calling she believed to be creditors of the bankrupt, is 
 evidence to go to the jury, to say whether they were so or 
 not (4) ; as well as a denial to only o?ie person calling to 
 make inquries about a dishonoured bill of exchange, and 
 whom the bankrupt believed to be a creditor. (5) So, it is 
 for a jury to say, whether the bankrupt denied himself for 
 the real purpose of delaying his creditor, or because he 
 called at an unseasonable hour. (6) 
 
 (1) Per Lawrence J. Foivler v. per Bayley J. 388.; and see ante, 
 Fadget, 7 T. R. 516. Per Lord 59. 
 
 E[\enborough,Iia7nsbottotnv. Lewis, (4) Jameson v. Eamcs, 1 Esp. 
 
 1 Camp. 279. Per Gibbs C. J. Hoi- 38 1 . 
 
 j^-oyd V. Whitehead, 3 Camp. 530. (5) Bleasbt/ v. Crosslei/, 2 Car- 
 
 (2) See ante, 53. ring. & P. 213. 
 
 (3) Dudley V. Vaitghan, 1 Camp. (6) Hughes \. Gillman, ibid. 32.; 
 -211. Castell's Bankruptcy, cit. and see ante, 58. 
 
 3 D
 
 770 
 
 OF EVIDENCE [Ch. 1.9. 
 
 Act of It may be proper, under this act of bankruptcy, to 
 
 ^^"'^" consider in what cases the hankrupfs declarations are 
 
 ■ receivable in evidence ; which are admitted only upon 
 
 ^? ^^J^y' the principle, that what a party says at the time of doing 
 
 of the an act is evidence for the purpose of showing its true 
 
 bankrupt's nature and character. Thus the declarations of a bank- 
 (leclar- . /• • • i • i ii- i 
 
 ations. rupt at the time of quitting his awelhng-house, or im- 
 mediately subsequent, are admissible in evidence, in order 
 to show the motive of his departure ; for it is the i7itent 
 with which he departed that constitutes the act of bank- 
 ruptcy. ( 1 ) So his order to a servant to deny him to a 
 creditor is (as we have before seen), for the same reason, 
 evidence of the intent of his being denied. The de- 
 clarations, also, of the bankrupt the day after his return 
 home, have been held admissible in evidence of the motive 
 of his absence (2) ; for, as the whole absence from his 
 dwelling-house is but one act of bankruptcy, there seems 
 to be no reason why declarations made so soon after his 
 return should not be considered as much a part of the 
 transaction, as declarations made just previous to his de- 
 parture. And it has been well observed by the late Sir 
 William Evans, in his edition of Pothicr (3), that the con- 
 versation of a person on his return home naturally connects 
 itself with the occasion of his absence, and is an indication 
 of the existing state of his mind ; and that wherever the 
 expressions can be so connected with the actions, as to be 
 regarded as the mere result and consequence of the co- 
 existing motives, they form a proper criterion for judging 
 of the person's intention and conduct. But Mr. Phillipps, 
 in his treatise (4) on Evidence, very properly adds to this 
 remark, that it would be too much to infer generally from 
 the above decision, that the declarations of a bankrupt, 
 made at any time afterisoards, can be admitted as evidence 
 
 {\) Ambrose v. Clendon, Rep. (.3) Vol. ii. 2S5. 
 teinp. Hard. 267. (-1) Vol.i. 278. 
 
 (2) Botemnn v, Bailey, 5T.\i. 
 5J2.
 
 Sect. I.] IN ACTIONS BY AND AGAINST ASSIGNEES. 771 
 
 to explain an antecedent absence, or any other past trans- Where no- 
 miction which is completely finished. Such statements, fi^c given, 
 indeed, concerning past transactions are in general wholly 
 inadmissible, as they form no part of the res gest(S. And 
 if there is any ivncertainty of the time when a declaration of 
 this kind is made, it cannot then be received in evidence ; 
 as where a deposition stated, that the bankrupt had ab- 
 sented himself, and had admitted that he had done so for the 
 purpose of avoiding his creditors — but specified no time 
 when such admission was made, — it was held not evenj^rimd 
 Jacie evidence of the act of bankruptcy. (1) In a recent 
 case, also, where the declaration was made a fcxs) days after 
 the alleged act of bankruptcy, Lord C J. Abbott held that 
 it was inadmissible. (2) 
 
 Where the act of bankruptcy insisted upon by the as- Fraudu 
 signees is a fraudulait grant or conveyance^ and the deed is 
 produced in evidence, the execution must be proved in the veyance 
 ordinary course by a subscribing witness. An admission 
 by the defendant of the execution of the deed will not dis- 
 pense with this evidence, not even if the defendant is a 
 party to the deed (3) ; for though a party may acknowledge 
 a deed, yet he may not know every circumstance attending 
 the execution ; and the subscribing witness may be cognizant 
 of a fact, not within the knowledge or recollection of a party 
 to the deed, but of which he is nevertheless entitled to avail 
 himself. (4) And, notwithstanding the defendant at the 
 trial should himself produce the deed in compliance with a 
 notice, this also is held to be not a sufficient ground for 
 dispensing with the ordinary proof (5) — though such was at 
 one time considered to be the rule (6) : — for the mere pos- 
 session of an instrument by one party does not, in general, 
 absolve the other from calling the subscribing witness. 
 But if the defendant (in pursuance of a notice) produces a 
 
 lent grant 
 or con- 
 
 (1) Marsh V. Meager, 1 Star. (4) Per Le Blanc J. 4 East, 55. 
 553. (5) Gordon v. Secrctan, 8 East, 
 
 (2) Schoelingv. Lee, 5 Star. 149. 548. 
 
 (3) Abbot V. Phnnbc, 1 Doug. (6) Rc.vv. Middlezoy,2T.R.4o. 
 2 1 C. Bon'/es v. Lans,tvor(Jn/, 5 T. R. 3GG. 
 
 3 D 2
 
 772 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 Act of 
 
 bank- 
 
 ruptcy. 
 
 Fraudu- 
 lent trans- 
 fer. 
 
 Lying in 
 prison. 
 
 deed to which lie is not only a party, but under tsohich he 
 holds property, or claims any beneficial estate, it will then not 
 be necessary that the plaintiff should call an attesting wit- 
 ness to prove the execution. (1) And upon this principle, 
 it seems, that where a fraudulent bill of sale is given by the 
 bankrupt to the defendant, the admission by the defendant 
 of the execution of the deed, in his examination before the 
 commissioners, would (in an action of trover brought by 
 the assignees to recover the property claimed by the de- 
 fendant under the deed) supersede the necessity of calling 
 the subscribing witness. (2) A fraudulent conveyance can- 
 not be read to prove an act of bankruptcy, if it has not 
 the proper stamp affixed to it. (3) 
 
 In order to shew that a grant or transfer to a creditor 
 is really fraudulent, the assignees must prove, first, that it 
 was made on the eve of bankruptcy ; secondly, that it was 
 made in contemplation of bankruptcy ; and, thirdly, that it 
 was made voluntarily, and for the purpose of favouring the 
 creditor. (4) Whether a transfer of goods is made in coji- 
 templation of bankruptcy is collected from various circum- 
 stances, such as the secrecy of the transaction, the unrea- 
 sonable hour at which the goods are removed from the 
 bankrupt's premises, the proximity of the transfer to the 
 time of the bankruptcy, and many other matters which 
 may shew what was the i7itent of the bankrupt in making 
 the transfer, and what was his knowledge of his own in- 
 solvency. (5) 
 
 To prove the act of bankruptcy by lying in prison {d), 
 the detention, and the cause of the detention, must be 
 shewn. The former may be proved by producing the 
 prison books, containing entries of the dates of the several 
 commitments and discharges to and from the prison (7) ; 
 
 (1) Pearce v. Hooper, 3 Taunt. 
 62. Orr v. Morice, 5 B. & B. 139. 
 
 (2) Botvles V. Langivorthi/, 5 T. 
 R. 366. 
 
 (3) Whitwell V . Dimsdale, Peake, 
 168. 
 
 (4) See ante, 63. et seq. 71. et 
 seq. 
 
 (5) See ante, Chap. XI. Part 2. 
 Sect. 6. 
 
 (6) See ante, 76. et seq. 
 
 C7) Hex V. Aickles, 1 Leach, 436.
 
 Sect. 1.] IN ACTIONS BY AND AGAINST ASSIGNEES. 773. 
 
 but they are not evidence of the cause of the commitment, Where no- 
 
 for the committitur itself is higher proof, and if in existence ^' ^^ gwen . 
 
 ought to be produced. (1) 
 
 The assignees will not upon the trial be tied down to Assignees 
 
 proof of the specific act of bankruptcy, upon which the "°*' ''^'* 
 • • r 1 1 I • iM T 1 clown to 
 
 commission was tounded, bemg at hberty to repudiate that, proof of 
 
 and rely upon any other. (2) Some act of bankruptcy, ^"y ^P^- 
 
 however, must be proved to have been committed before 
 
 the issuing of the commission, and aftei- the contracting of 
 
 the petitioning creditor's debt (3); and if that is proved, it 
 
 is immaterial how recently it was committed before the 
 
 commission issued (4-) — or how many acts of bankruptcy 
 
 may have been committed by the bankrupt. (5) But Practice 
 
 where the Lord Chancellor directs an issue, or an action at ^"^''^ 
 
 Lord 
 
 law, — though he will generally permit other acts of bank- Chan- 
 
 ruptcy to be given in evidence, yet as this is considered an ^^"o'' ^i- 
 
 rects an 
 indulgence to the party seeking to support the commission, issue. 
 
 such party will be required to state by affidavit upon xsohat 
 
 particular acts of bankruptcy he relies (6); and to give 
 
 notice to the other party, by what evidence he intends to 
 
 prove his case. (7) Upon one occasion, indeed, where the 
 
 commission was proved (on the trial of an issue) to have 
 
 been founded on a concerted act of bankruptcy. Lord 
 
 Eldon refused to direct another issue with liberty to prove 
 
 other acts. (8) 
 
 If the issuing of the commission and the act of bank- Where act 
 
 ruptcy happen on the same day, evidence is then ad- bank- 
 
 . ., 1 • 1 • 111 • • ruptcy and 
 
 missible against the assignees to shew that the commission commis- 
 
 was issued (that is, sealed) prior to the act of bank- sion on 
 
 ruptcy. (9) A verdict upon an issue directed out of Chan- 
 
 (1) Saltev. Thomas, 5 Bos. & P. (5) Section 19.; and see BrTjant 
 188. V. Withers, 2M. &S. 151. Do- 
 
 (2) Reed v. James, 1 Star. 134. noi'onv. Duff, 9 East, 21. Rex w. 
 Buck. 79. Bullock, 1 Taunt. 94. 
 
 (3) Ex parte Wainman, C. B. L. (0) Ex parte Burgess, Buck. 
 2.5. 235, 
 
 (4) Hojyper v. Richmond, 1 Star. (7) Ex parte Bogen, ibid. 157. 
 ,507. (8) Ex parte Prosaer, Buck. 77. 
 
 (9) Wi/doivns case, 14Vcs. 80. 
 
 3 D 3
 
 774 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 Act of 
 
 bank- 
 
 ruptcy. 
 
 Where 
 commis- 
 sion 
 against 
 several 
 partners. 
 
 eery, to which only one of the defendants was a party, may 
 be received against all the defendants to prove the time of 
 the act of bankruptcy. ( 1 ) If the commission is against 
 several partyierSi each most be proved to have committed 
 an act of bankruptcy ; for the act of one, in this respect, 
 will not bind the rest — 'though he is the only one transacting 
 the business, and residing at the place where it is carried 
 on. (2) 
 
 It is to be remembered, we may observe once more, 
 that all the preceding observations as to the proof of the 
 petitioning creditor's debt, the t7'ading, and t^e act of bank- 
 ruptcy, will only apply where the party in the action is 
 entitled to give, and has duly given, notice of his intention 
 to dispute the validity of the commission. 
 
 Proof of 
 issuing of 
 the com- 
 mission. 
 
 The next link to be considered in the chain of evidence 
 (though it is in practice offered as the first in order of 
 proof at the trial) is the due issuing of the commission ; 
 and this it will be incumbent on the assignees to prove, 
 whether the defendant gives notice or not, of his intention 
 to dispute the three preceding matters of proof. To 
 establish this, it v/ill be necessary to pi-oduce the original 
 commission under the Great Seal. (3) But now, by section 
 96. of the new statute, no commission, or adjudication of 
 bankruptcy, or assignmejit of the personal estate of the 
 bankrupt, or certificate of conformity, is receivable in evi- 
 dence in any court of law or equity, unless the same re- 
 spectively shall have been first entered of record at the 
 Bankrupt Office. The Great Seal therefore of the king- 
 dom, which has been hitherto considered the most solemn 
 mode of authenticating any instrument, appears to be no 
 longer sufficient evidence to verify a commission of bank- 
 
 (1) Lowfield v. Bencroft, Bull. 
 N. P. 40. 
 
 (2) Mills V. Bennett, 2M.&S. 
 556'. 
 
 (>) In Bullcr's Nisi Prius, as well 
 
 21 
 
 as most of the other books, it is 
 added, " And the petition to the 
 Ciiancellor on which the com- 
 mission was granted ;" but this 
 does not seem to be necessarv.
 
 Sect. 1.] IN ACTIONS BY AND AGAINST ASSIGNEES. 775 
 
 rupt; but the commission must now have a certificate in- Where no- 
 dorsed thereon, purporting to be signed, either by the ^^ given . 
 person appointed by the Lord Chancellor to enter of re- 
 cord matters relating to commissions of bankruptcy, or by 
 his deputy ; which certificate is, without any proof of the 
 signature (1), declared to be receivable as evidence of the 
 commission having been so entered of record. When, 
 however, a commission is superseded, the writ of supersedeas 
 (reciting that a commission issued on a day certain) is 
 evidence to shew that such a commission issued on that 
 day, even against a party who is both a stranger to the 
 writ and to the commission ; for a commission of bank- 
 ruptcy is considered, in law, as a proceeding to which all the 
 world are parties. (2) If it be alleged in pleading, that Variance. 
 the commission issued " under the Great Seal of Great 
 Britain" it is no variance that it is, in fact, issued under 
 the Great Seal of the United Kingdom. (3) But it is a fatal 
 variance to allege, that the party sued the commission out 
 of the High Court of Chancery. {4;) 
 
 The bankrupt being not divested in law of any of his Proof of 
 
 assign- 
 ment. 
 
 property, until an assignment is executed (5) by the com ^'''''-" 
 
 missioners of his estate and effects, (which, when once made, 
 Vests the personal property in the assignees from the time of 
 the bankruptcy (6) ) ; — the assignment, therefore, becomes 
 an important document to be proved, in order to complete 
 the proof of the title of the assignees ; though, by the 
 courtesy of practice in the Court of King's Bench, it is 
 generally admitted on the trial, unless there are substantial 
 reasons to the contrary. (7) When proof of it is insisted 
 upon, it must be proved in the regular manner, by pro- 
 ducing the deed, and calling the attesting witness to prove 
 the execution of it. But where the assignees produce the 
 
 (1) Section 96. 58. I Rose, 222.; and sec ante, 
 
 (2) Gcrvisv.Wcstern Canal Com- 137. 
 
 pavijt 5 M. & S. 76. (5) And see ante, ."20. 
 
 (3) Rex- V. Bullock, 1 Taunt. 71. (6) 2 Rep. 26. a. 
 
 {4) Poi/nton V. Forstcr, 3 Camp. (7) Read v. Cooper, 5 Taunt. 89. 
 3 D 4'
 
 776 OF EVIDENCE [Cb. 19. 
 
 Act oj assignment under a notice from the other party, it is then 
 bank- admissible in evidence for that party, without proof of the 
 
 , execution by the subscribmg witness, it the assignees claim 
 
 any benefit (1) under the assignment. The assignment 
 must (as well as the commission) have the proper certificate 
 indorsed of having been entered of record at the Bankrupt 
 Office, before it can be read in evidence. 
 
 Proof of With respect to actions relating to the bankrupt'syr^eAoM 
 
 ancf sale properti/i (which, as we have already seen, does not pass by the 
 general assignment of the commissioners) — the title of the 
 assignees is to be substantiated by producing the bargain and 
 sale to them from the commissioners, and proving its exe- 
 cution in the ordinary way. But, unless the commissioners 
 execute the power with which they are invested in the pre- 
 cise manner prescribed by the statute, it will have no effect 
 in passing the estate. (2) The deed must, therefore, appear 
 to have been enrolled in some court of record (3) ; and this 
 must be done within six months after the date of the deed> 
 according to the express provision of the statute of the 
 27 H. 8. c. 16. relating to the enrolment of bargains and 
 sales. (4) The enrolment may be proved by a certificate on 
 the bargain and sale signed by the proper officer, which 
 will be evidence also of the time when it was enrolled (5) ; 
 for the indorsement is considered as part of the enrolment, 
 which being a I'ecord, is therefore conclusive as to the 
 time. (6) And, as the enrolment of the deed thus becomes 
 a record, the deed may likewise be proved by an examined 
 copy of the enrolment, signed by the proper officer; and 
 the time of the enrolment may, in like manner, be proved 
 by an examined copy of the officer's indorsement on the 
 enrolled deed. (7) 
 
 (1) Pearce v. Hooper, 3 Taunt:. (5) Kinnerslcy v. Orpe, 1 Doug. 
 62. Orr V. Morice, 5 B. & B. 159. 56. 58. 
 
 (2) Perri/\. Bowes, SirT. Jones, (6) Rex in aid of Rccd v. i/b;> 
 1 96. Bcnnet v. Ganih), Carth. 17s. per, 3 Pri. 495. 
 
 BllxM V. Bnnhj, 12 Mod. 3, , (7) See 1 Phill. 588. 499. 2Phill. 
 
 (3) Sect ion 64. 288. 
 
 (4) 2 Phill. 288. 
 
 '
 
 Sect. 2.] IN ACTIONS BY AND AGAINST ASSIGNEES. 777 
 
 No stamj) is any longer necessary to give validity to the Where no. 
 
 commission, or the assignment, or indeed to any other ''t"^gi»^'«- 
 
 document or conveyance relating solely to the estate or No stamp 
 
 cJJects of the bankrupt. necessary. 
 
 Section II. 
 
 Where the Defendant is not etititled to give Notice to dispute 
 the Commission. 
 
 In all actions brought by the assignees for any debt or Where 
 
 demand, for which the bankrupt himself could have sued, tpedepow- 
 
 ' "^ ' tions are 
 
 if his bankruptcy had not intervened — unless the bankrupt conclusive 
 
 has given the notice before mentioned ( 1 ) of his intention ^^'"^'^ce. 
 to dispute the commission — the depositiojis taken before the 
 commissioners at the time of or previous to the adjudica- 
 tion, will be conclusive (2) evidence of the petitioning cre- 
 ditor's debt, the trading, and the act of bankruptcy — that is, 
 provided the facts stated in the depositions amount to such 
 proof of those several matters as is required by law. For, 
 when the time given by the statute to the bankrupt to dis- 
 pute the commission is elapsed, the defendant in the action 
 will then have no right to force the assignees to give formal 
 proof of these several matters. But an action brought by 
 the assignees, to recover back the payment of a debt made 
 by the bankrupt to a creditor after his knowledge of an act 
 of bankruptcy, or after the issuing of the commission — for 
 which the hanl'rupt himself could, of course, have no right 
 to sue — would not be such an action as would deprive the 
 defendant of his right at any time to dispute these matters, 
 upon giving the requisite notice of his intention to Ao so. 
 
 The term (3) conclusive must be understood to apply to How tar 
 
 the several facts contained in the depositions, and not to .^ '^^^o- 
 ^ ' sitions are 
 
 (1) See ante, 758. witnesses to contradict the facts 
 
 (2) Section 92. stated in the depositions. Ellis v. 
 
 (3) Before the new statute, it Slurlci/, .1 Camp. 424. Brown v. 
 was held, that a party could call Foncsiall, 1 Holt, 1 90.
 
 evidence. 
 
 778 OF EVIDENCE [Ch. 19. 
 
 JDeposi- the conclusio7is of law drawn by the witnesses, or by the 
 '""^' commissioners, from those facts. For though no witness 
 
 conclusive Can be called upon the trial to contradict the Jhcts deposed 
 to (1), yet if the depositions, upon the face of them, are not 
 legal proof of a petitioning creditor's debt, trading, and 
 act of bankruptcy, they cannot be received in evidence, 
 notwithstanding those matters have been found by the 
 commissioners. (2) Thus, though the deposition (of the 
 witness to prove the act of bankruptcy) will be conclusive 
 evidence of the time when the bankrupt did a certain act, 
 and of the fact itself, it will not be evidence of its amount- 
 ing to an act of bankruptcy. So the deposition of the 
 petitioning creditor will be evidence of a certain sum due 
 to him, and also of the character in which he claimed it, 
 whether as executor, or assignee — nor will it be necessary in 
 either of these cases to produce the probate, or the assign- 
 ment (3) ; but, whether the sum due was a debt to support a 
 commission, — that is an inference of law, which the Court 
 upon the trial will not be estopped from determining, by 
 the adjudication of the commissioners. So, if a deposition 
 state, that the deponent witnessed the execution of a deed 
 by the bankrupt, by which he assigned his property to 
 A. B., — though this is evidence of such a deed as stated 
 in the deposition (4), yet it is not evidence that the deed it- 
 self was an act of bankruptcy. 
 
 The whole effect, indeed, of the provision of the sta- 
 tute is, only to make the depositions evidence — not to 
 admit the fact of the bankruptcy to be proved ; for this 
 must be as strictly made out by the depositions, as it 
 would be required to be done by witnesses. (5) If the 
 facts, therefore, stated in the depositions, are sufficient of 
 themselves to sustain the bankruptcy, no farther proof 
 is necessary (6) ; but they may be always objected to 
 
 (1) See Humphries v. Coggan, (4) Ka^ v. Stead, 2 Star. 200. 
 1 Rose, 226. (5) Rawson v. Haigh, 1 Carriiig. 
 
 (2) Clurkc V. Askeiu, 1 Star. 458. 80. 
 
 (3) Skaife v. Hmvard, 2 B. & C. (6) Per Abbott C. J. 2 B. & C. 
 S60. 560.
 
 Sect. 2.] IN ACTIONS DY AND AGAINST ASSIGNEES. 779 
 
 for not proving the subject-matter to which they apply. Where nut 
 Thus, if the deposition of the petitioning creditor state <^ntiiledio 
 
 UIVC TlotlCCm 
 
 only, that the debt was due to him at and before the 
 
 time of mill g forth the commission — not showing that it 
 existed at the time of the act of the bankruptcy — this 
 would be defective proof of the petitioning creditor's 
 debt. ( 1 ) So, upon a commission sued out against the 
 drawer of a bill of exchange, if the deposition does not 
 state presentment and notice, there will not be sufficient 
 evidence of the debt. (2) And again, where the deposi- 
 tion of the witness to prove the act of bankruptcy stated, 
 that the party absented himself on a certain day, and that 
 he had declared to the deponent that his motive was to 
 avoid his creditors — but not stating the time when this 
 declaration of the bankrupt was made, — this was ruled 
 not to be sufficient proof of an act of bankruptcy. (3) 
 
 In every case, however, where the depositions turn out Defective 
 to be insufficient proof of any of the requisites to support ^.^P'^^*" 
 the commission, the assignees will not be prevented from be sup- 
 
 callina; witnesses to establish these facts by other f4) pl'^^'^y. 
 ^ J \ ' other evi- 
 
 evidence. dence. 
 
 The deposition of the petitioning creditor, being ex- Deposition 
 
 pressly made evidence by the statute (5) of the several pfp^'^'^'o^ 
 " . ... .. .. in<T cre- 
 
 matters contained in it, is admissible at the trial in proof ditor. 
 
 of his debt (6); though, if he himself were called, he would 
 not be a competent witness to support the commission. (7) 
 And in one of the cases before mentioned (8), the depo- 
 sition was holden to be evidence, that the petitioning cre- 
 ditor was executor of the party with whom the bankrupt 
 contracted the debt, though parol evidence of that fact 
 
 (1) Clarke V. Askew, 1 Star. 458.; (4) Clarke v. Askew, 1 Star.458. 
 and see Lawton v. Robinson, ibid. (5) Section 92. 
 
 456. (6) Bisse v. Randall, 2 Camp. 
 
 (2) Cooper v. Machin, 1 Bing. 495. 
 
 426. (7) Green v. Jones, 2 Camp. 
 
 (3) Marsh v. Meager, I Star. 411. 
 
 353.; and see ante, 771. (s) Skai/c v. Howard, ante, 778.
 
 780 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 1 
 
 would not otherwise have been admissible, — but the pro- 
 bate must have been produced. (1) 
 
 And see further, as to the admissibility of the depositions 
 generally in evidence, post, section 5. 
 
 Infant de- 
 fendants 
 not bound 
 as to no- 
 tice. 
 
 As to un- 
 dertaking 
 on retain- 
 ing venue. 
 
 Strict 
 proof re- 
 quired as 
 
 Section III. 
 Where no Notice has been giveii to dispute the Commission, 
 
 Where no notice has been given by the other party to 
 the action, to dispute the petitioning creditor's debt, the 
 trading, or the act of bankruptcy, it will now be sufficient 
 for the assignees merely to prove the commission and the 
 assignment (2), without any further proof of their title to 
 sue as assignees ; the present statute (as has been before 
 observed (3)) differing materially in this respect from the 
 49 G. 3. c. 121. sect. 10, 11., which only declared that the 
 proceedings should in such case be admissible. 
 
 Infant defendants, however, in a suit in equity will not 
 be bound by not giving notice, — but strict proof will be 
 required as against them. (4') 
 
 Where a plaintiff retains] the venue upon the usual un- 
 dertaking to give material evidence within the county, — 
 if, in this case, the plea and issue be such as to render such 
 evidence irrelevant, the performance of the undertaking 
 is dispensed with. Therefore, if the local evidence be the 
 trading and the petitioning creditor's debt, yet if the de- 
 fendant do not give notice of his intention to dispute the 
 commission, it seems that the undertaking need not be 
 complied with. (5) 
 
 But whether notice is given or not to dispute the com- 
 mission, yet in all proceedings against the bankrupt, either 
 
 ( 1 ) See Doc v. Lision, 4 Taunt. 
 741. 
 
 (2) See ante, 774, 775. 
 
 (.3) Ante, 758. 
 
 (4) BcH V. Tinnci/, 4 Mad. 372. 
 
 (.5) Soidshy V. Leu, 3 Taunt. 86,
 
 Sect. 4.] IN ACTIONS BY AND AGAINST ASSIGNEES. 781 
 
 criminal or civil, strict proof will be required of the re- Where no 
 quisites to support it ; and the depositions in this respect ^J^^^^ 
 
 will not be sufficient evidence. (1) Thus, on an indictment 
 
 against a bankrupt for perjury before the commissioners in j'S^V'^'- ^'^^ 
 passing his last examination, it has been ruled necessary to 
 give evidence of the petitioning creditor's debt, the trading, 
 and act of bankruptcy — although the indictment alleged, 
 that the defendant had been didy found and declared banJc- 
 nipt ; for the authority of the commissioners takes its root, 
 not in the commission, but in the banJauptcy ,• and unless 
 the defendant really was a bankrupt, their examination of 
 him would be unauthorised. (2) This strictness of proof, 
 however, does not seem to be necessary in a criminal pro- 
 ceeding against tJiii-d persons ; for on a similar indictment 
 against such a person, who had been examined before the 
 commissioners, proof of the commissioners' adjudication 
 was held to be sufficient. (3) 
 
 Section IV. 
 Wliere no Proof of the Title of the Assignees is necessary. 
 
 Where the defendant is by his own act estopped from 
 disputing the title of the assignees, they will not be bound 
 to prove any of the preceding matters, in order to support 
 a right of action against him. As where the defendant {jpo^ ^ 
 has himself contracted with the assignees, they may, in that personal 
 case, recover against him without proving themselves to ^'j^h'^as. 
 be such ; for the promise of the defendant is then not signees. 
 a promise by mere implication of law, but amounts to 
 an actual contract, in respect of which the plaintiffs will be 
 entitled to recover suo jure. (4) And even in such a case, 
 when the plaintiffs allege themselves to be assignees in the 
 
 (l) And see post. Devon Spring Assizes, 1818. Man. 
 
 (.2) Rex V. Purshon, 5 Camp. 96. Index, 2d edit. 232. 
 
 (3) Bex V. Raphael, per Abbott J. (4) Evans v. Ma7m, Co\\p.569.
 
 78^ 
 
 or EVIDENCE 
 
 [Ch. 19. 
 
 Where no 
 proof of 
 title ne- 
 cessary. 
 
 Or with 
 the bank- 
 rupt after 
 his bank- 
 ruptcy. 
 
 When de- 
 fendant es- 
 topped by 
 his own 
 admis- 
 sions. 
 
 declaration, the proof of that fact appears to be super- 
 fluous, provided they establish a title to recover, inde- 
 pendent of such averment. (1) And the same principle 
 applies to the case, where the assignees sue upon a contract 
 made with the defendant by the bankrupt after his banh" 
 ruptcy; for the bankrupt being incompetent to make such 
 contract, the assignees may adopt it as their own, and treat 
 the bankrupt as their agent. (2) 
 
 The regular and formal proof will be likewise dispensed 
 with, if the defendant has, by his own admissions, precluded 
 himself from disputing the bankruptcy. Thus, in an action 
 brought by an assignee to recover the price of some goods, 
 which the defendant had received from the bankrupt before 
 his bankruptcy to sell by auction, and v/hich he had sold 
 after the bankruptcy, — it was held, that the defendant, 
 having described the goods in his catalogue of sale, as " the 
 property of Durouveray, a bankrupt" had estopped himself 
 from calling the bankruptcy in question ; and that this admis- 
 sion dispensed with the necessity of going through the differ- 
 ent steps of proof as in ordinary cases. (3) For it was con- 
 sidered, that such an admission, being an express declaration 
 by the defendant that Durouveray was a bankrupt, amounted 
 also to an admission that the defendant tsoas acting under his 
 assignees, whoever they might be ; inasmuch as the defendant 
 must be taken to be cognizant of the law, that the bankruptcy 
 countermanded any authority, which the bankrupt himself 
 might have previously given for the sale. (4) So, where the 
 defendant had purchased goods of the bankrupt — and after 
 the bankruptcy attended a meeting of the commissioners, 
 and exhibited an account between himself and the bank- 
 rupt, claiming certain deductions — and afterwards made a 
 part-payment to the plaintiff, — it was held, that the de- 
 fendant must be understood to have treated with the plain- 
 
 (1) Per Wood B. Thomas 
 Rideing, Wightw. 65. 
 
 (2) Eimns v. Manv, siipni. 
 
 (.")) Maltby V. Christie, 1 Esp. 
 -40. 
 
 (4) Per Lord Ellcnhoroiigh, 
 ic East, 195.
 
 Sect. 4.] IN ACTIONS BY AND AGAINST ASSIGNEES. 783 
 
 tilf as assignee ; and that this was 2^f'in2d facie evidence of Where no 
 
 his beinff assignee, without the production of the proceed- VJ'^^f ^f 
 
 .^ ^ , . . f, . title neces- 
 
 ings (1); for that any recognition of a person standing in a sart/. 
 
 given relation to others is jprimd facie evidence (against 
 the person who makes such recognition) that the relation 
 exists. So, if a defendant, on being applied to by a person 
 whom he knows to be the collector of the bankrupt's debts 
 for the assignees, says, " / will call and pay the money" — 
 such promise has been held to be an admission of the 
 right of the assignees, and renders it unnecessary to give 
 the usual proofs in support of the commission. (2) Evi- 
 dence, however, of this description is not conclusive ; and 
 the defendant in such a case may shew in answer, that the 
 plaintiff bore some other character than that of assignee, at 
 the time of the payment or the promise. 
 
 But the mere circumstance of a creditor having ^^rot;^^ a Proof of a 
 debt under the commission is not sufficient to preclude him ^^^^ ^^^? 
 from disputing its validity (3); for, by proving a debt, the the vali- 
 creditor at most only gives credit to the petitioning creditor 'I'ty of tlie 
 and to the commissioners, that the former has not sued out 
 the commission, nor the latter declared the trader a bank- 
 rupt, without proper grounds. The creditors, in general, 
 have not the means of knowing the evidence on which the 
 party was declared bankrupt ; and it would not be reason- 
 able, that (by proving their debts) they should be put to the 
 dilemma of being understood to have admitted, that every 
 act necessary to support the commission really existed, 
 when they could not judge whether such acts did or did 
 not exist. (4) If the assignees, therefore, bring an action 
 against a creditor who has proved, and the creditor gives 
 notice of his intention to dispute the commission, the as- 
 signees must regularly prove the petitioning creditor's debt, 
 
 (1) Dickenson V. Coward, i B.& 191. Stewart v. Richman, 1 Esp. 
 A. 677. 108. Hope v. Fletcher, 1 Sclw. 
 
 (2) Popev. Monk, 2Carring. & Ni. Pri. 258. contra. Walker v. 
 P. 1 1 2. Barnell, Doiig. 30o. 
 
 (3) Rankin v. Horner, 16 East, (4) Ibid. 
 
 commis-
 
 784. 
 
 Where no 
 proof of 
 title neces- 
 sary. 
 
 Difference 
 in this re- 
 spect be- 
 tween a 
 creditor 
 and an 
 assignee. 
 
 What 
 amounts 
 to an ad- 
 mission by 
 bankrupt. 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 Plea of 
 payment 
 admission 
 of title. 
 
 the trading, and act of bankruptcy, as in ordinary cases 
 where those facts are disputed. Lord Eldon, however, 
 upon one occasion expressed an opinion, that there was a 
 great difference in this respect between a mere creditor, and 
 an assignee under the commission ; and said, if in any pro- 
 ceeding before him it was put to an assignee who had proved, 
 either to admit the commission or not, and he elected to 
 dispute it, he should require him to do so at the expense of 
 his proof. ( 1 ) 
 
 Where a bankrupt had applied for and obtained his 
 discharge from custody, on the ground that his detaining 
 creditor had proved under the commission, — it was held, 
 that he was estopped in an action against his assignees from 
 disputing the validity of the commission ; for that, having 
 availed himself of the commission for one purpose, he could 
 not be afterwards allowed to assert that the commission was 
 invalid. (2) 
 
 When a defendant puts himself upon one issue in an 
 action, he admits all the rest. Therefore, in an action of 
 debt on bond by assignees, a plea of payment admits 
 their title, and they need not prove themselves to be as- 
 signees, (3) 
 
 Section V. 
 
 As to the Admissibility/ of the Depositioiis and Proceeding^ 
 under the Commission. 
 
 Having considered the general nature of the evidence 
 required to support the commission, the next subject of 
 inquiry relates to the admissibility in evidence of the de- 
 positions, and the proceedings in general under the com- 
 mission; for of those relating to the petitioning creditor's 
 
 (1) Ex parte Jceks, 1 Ko&e,393. 
 
 (2) Watson v. Wacc, 5 B. & C. 
 
 15.7. 
 
 (.'5) Corshic v. Oliver, 1 Star. IG.
 
 Sect. 5.] FN ACTIONS BY AND AGAINST ASSIGNEES. 785 
 
 debt, the trading, and the act of bankruptcy we Iiave al- Ofthede- 
 ready (1 ) sufficiently treated. " p^osition,. 
 Before the 5 G. 2. c. 30. s. 41. the depositions of wit- 
 
 nesses taken by commissioners of bankrupt could not be ^'^''™^''v 
 •' . _ ^ not receiv- 
 
 given in evidence in an action to try the question of bank- ableinevi- 
 ruptcy — or, indeed, any other question connected with it ; "'^"^^• 
 because in those proceedings the parties interested had not 
 the power of cross-examining the witnesses. (2) That 
 statute made a copy of the proceedings evidence in certain 
 cases after being entered of record (3); and a subsequent 
 statute (4-), it has been shown, made also the depositions and 
 proceedings themselves evidence to prove the petitioning 
 creditor's debt, the trading, and the act of bankruptcy, if 
 no notice was given to dispute those matters. Tiie new 
 statute also, as we have already seen (5), extends the ad- 
 missibility of the depositions for this purpose, in actions 
 brought by the assignees for any debt or demand of the 
 bankrupt. 
 
 By the 95th section it is likewise enacted, that the Lord Lord 
 Chancellor may from time to time appoint a proper person, |^"^"'^^'' 
 who shall by himself or his deputy (to be approved of by direct de- 
 
 the Chancellor) enter of record all matters relating; to com- P°*i'^io"s 
 
 ° to be re- 
 
 missions, and have the custody of the entries thereof. And corded. 
 
 by section 96 , the Lord Chancellor may, upon petition, 
 
 direct any depositions, proceedings, or other matter relating 
 
 to commissions of bankruptcy, to be so entered of record ; 
 
 and upon the production in evidence of any instrument so 
 
 directed to be recorded, and having the certificate thereon 
 
 purporting to be signed by the proper officer or his de- 
 
 (1) Ante, 778. et seq. record, " and signed and attested as 
 
 (2) Francisco v. Gilmore, I Bos. hereinafter mentioned" might be 
 & P. 177. given in evidence, it made no pro- 
 
 (3) There was a strange inac- vision whatever for attesting or 
 curacy in the wording of this clause signing the copies so made. 
 
 of the 5 G.2.which was first pointed (4) 49 G. 3. c. 121. s. 10, 11.; 
 
 out by Mr.Douglas in his Reports, and see ante, 756. 
 
 vol.i. 258. note (1). After the (5) Section 92.; and see ante, 
 
 clause had enacted, that copies of 777. 
 
 tlie proceedings, when entered of 
 
 3 E
 
 78G ^^F KVIDENCF. [Ch. 19. 
 
 Oftkede- puty, the same shall without any proof of such signature 
 
 positions, ^ received as evidence of such instrument having been so 
 eye. " 
 entered of record. ( 1 ) 
 
 ^^ce By section 97. it is also enacted, that in every action, 
 
 copies. ^^.^^ ^^ issue, office copies of any original instrument or 
 writing filed in the office, or officially in the possession of 
 the Lord Chancellor's secretary of bankrupts, shall be evi- 
 dence to be received of every such original instrument or 
 writing respectively. And if the original shall be produced 
 on the trial, the costs of producing it will not be allowed 
 on taxation, unless it appears that the production of it was 
 necessary. 
 Deposi- When, therefore, any of the proceedings under the com- 
 
 tions con- ^jjiggjo^ have been duly entered of record, they will be 
 where evidence of all matters contained in them, of which the 
 
 commis- commissioners had authority to inquire. Thus, as we have 
 
 sionersnad . . 
 
 authority already seen (2), the deposition of the witness to prove the 
 
 to inquire. ^^^^ ^f bankruptcy will be evidence to prove the precise time 
 when the act of bankruptcy was committed ; for the witness 
 cannot tell his story before the commissionei's without 
 saying when that took place ; and as he must mention the 
 circumstance as a matter of course in his deposition, he must 
 be taken to have spoken the truth, unless the contrary ap- 
 pears. (3) So, the deposition of the petitioning creditor, 
 as has been already stated, will be evidence of a debt due 
 to him in the character in which he claimed it. As if it 
 appears, that the debt is due to him as executor, it is not 
 necessary to produce the probate to prove him such ; nor, 
 where it appears to be due to him as assignee, is it necessary 
 to produce the assignment. (4) So the proceedings of the 
 
 (1) The clerk of enrolments, when required. Ex parte Sandi- 
 
 however, (who is the officer ap- son, 1 Rose, 275. 
 
 pointed to enter proceedings in (2) Ante, 778. 
 
 bankruptcy of record) is not in- (s) Janson v. Wilson, 1 Doug. 
 
 titled, as against the assignees, 257. 
 
 to a lien on the proceedings for (4) Skaife v. Howard, 2 B. & C. 
 
 his fees in this respect; but must 560. 
 deliver them up to the assignees
 
 Sect. 5.] IN ACTIONS BY AND AGAINST ASSIGNEES. 787 
 
 commissioners, when recorded, will be conclusive evidence Ofthede^ 
 of a debt proved under the commission, as against the as- ^°** *^"*' 
 
 signees ; for where the debt has once been liquidated before 
 
 the commissioners, it cannot afterwards be disputed, except 
 on an application to the great seal. (1) But where a bill As to their 
 was filed against assignees, who disputed the validity of a biiity 
 conveyance under which the plaintiffs claimed, upon the against a 
 ground that it had been executed subsequently to the act of the com- ° 
 bankruptcy — and they tendered the proceedings under the mission, 
 commission as evidence of this fact ; — the Vice-Chancellor 
 held, that to admit the proceedings in such a case — not to 
 sustain the title of the assignees under the commission, but 
 incidentally to invalidate the rights of strangers — would 
 produce the grossest injustice, in affecting the interest of a 
 party by evidence, of which, till the moment it was pro- 
 duced, he was in utter ignorance — and which had been 
 taken without any opportunity of its being met either by 
 direct, or by cross, examination ; and he therefore refused 
 to admit the proceedings in evidence. (2) It does not 
 appear from the report of this case, what particular docu- 
 ment among the proceedings was tendered to disprove the 
 title of the plaintiff, or whether the proceedings were re- 
 corded or not; but it should seem, that the deposition of 
 the witness to prove the act of bankruptcy would, con- 
 sistently with the above case of Janson v. Wilson^ and con- 
 sistently also with the construction of the present statute, 
 have been receivable in evidence to prove the iime of the 
 act of bankruptcy, unless the plaintiff had given notice to 
 dispute the commission. 
 
 But though the depositions and proceedings are con- ^^^ ^q„. 
 elusive evidence, under the 92d section^ of the facts stated elusive 
 in them in actions by the assignees for a debt of the bank- blnkrupV*^ 
 rupt — yet they are not conclusive evidence of those facts, as 
 against the banJcrupt himself. For though the 90^/^ section 
 extends to actions generally by or against any assignee or 
 
 {\) Brown v. Bullen, 1 Doug. (2) Whitworihv.Graham,2Rose, 
 407. ■'564. 
 
 3 E 2
 
 788 
 
 or EVIDENCE 
 
 [Ch. 19. 
 
 Of the de- 
 positions. 
 
 Examina- 
 tion of 
 bankrupt 
 evidence 
 against 
 himself. 
 
 So of any 
 
 other 
 
 party; 
 
 commissioner, and declares that no evidence &h2\\ be required 
 of the petitioning creditor's debt, the trading, or act of 
 bankruptcy, unless the other party gives notice of his in- 
 tention to dispute these matters, — yet in the event of the 
 hanJcrupt bringing an action against the assignees, or the com- 
 missioners, within the period limited by the 92d section (1), 
 the action itself vv'ould, it is apprehended in this instance, 
 he notice of his intention to dispute the bankruptcy — and 
 enable him to call witnesses to contradict the depositions, 
 though he had not, in fact, given any notice to dispute 
 the bankruptcy at the trial (2), or any actual notice within 
 the terms of the 92d section. The depositions, indeed, as 
 far as they relate to the validity of the commission, do not 
 seem to be more admissible against the bankrupt in an 
 action, than (as we have already seen (3) ) they are in an in- 
 dictment for perjury, where strict proof is required of all 
 the requisites to support the commission. But if the de- 
 positions have been recorded pursuant to the terms of the 
 96^// section, and the witnesses to prove the facts deposed 
 to are dead, it is conceived, that the depositions would then 
 be admissible as evidence of the facts contained in them, 
 even against the bankrupt — leaving him still at liberty to 
 call witnesses to contradict the depositions. 
 
 The examination, however, of the bankrupt taken be- 
 fore the commissioners is evidence against himself, even 
 if the questions were improperly put to him with a view to 
 the action (4) — and though he might have demurred to 
 them, as exposing him to penalties. (5) So, the examination 
 of any party, who has signed it after it was read to him, is 
 evidence against himself (6); and it is immaterial, with re- 
 spect to the question of admissibility, whether every word 
 
 (1) See ante, 758. 
 
 (2) And see F.llis v. Shirlet/, 
 3 Camp. 434. Jones \. hleiuellyn, 
 1 Meriv. 6. (a). Mills v. Bennet, 
 sM.&S. 556. Cooper y. Mac/iin, 
 1 Bing. 426". 
 
 (3) Re.v V. Pimskon, 3 Camp. 
 96; ante, 781. 
 
 (4) Stoclcfleth V. De Tastet, 
 4 Camp. 18. 
 
 (5) Smith V. Beadnell, 1 Camp. 
 30. 
 
 (6) Hammond v. Myert, sAtk. 
 415.
 
 Sect. 5.] JN ACTIONS BY AND AGAINST ASSKINLKS. 7S9 
 
 used by him was taken down, or only the substance of (^J ^^{'-' ^^"^ 
 what appeared to be relevant. (1) If he refers, also, in his ^^.^ 
 
 examination to a written document, as containing a state- 
 
 ment of facts to which he is questioned, that document may 
 be read as part of his (2) examination ; but parol evidence 
 is not permitted to explain it. (3) The examination of a but not 
 third persouy however, has been held not admissible against pg^son 
 a party to the suit ; therefore Sir T. Clarke refused to against a 
 allow the examination of the defendant's attorney to be ["j^^ l^^-^ 
 read, unless he had been examined in chief (4) in the 
 cause. And where a creditor had taken the bankrupt's 
 goods in execution after an act of bankruptcy, and assigned 
 them to B. ; — the creditor's examination (taken under the 
 commission) was holden not admissible in an action by the 
 assignees against B. (5) For the same reason, the examin- 
 ation of a bankrupt — taken, not in his own bankruptcy, but 
 under another commission — is not (in the event of his death) 
 evidence, upon a petition in his bankruptcy to expunge the 
 debt (6) of a creditor. And an examination before com- 
 missioners, on an inquiry as to a debt, is not evidence on a 
 petition to expunge the proof of a creditor, who was no 
 party to the inquiry. (7) So, where a defendant pleaded A party's 
 a set-ofF in an action brought against him by assignees, ^.^" '^^P^* 
 
 ri'iiur i^t^on not 
 and tendered his &w?i deposition m proor or a debt before evidence 
 
 the commissioners, as evidence of the set- off, — Lord El- for him- 
 lenborough refused to receive it — saying, that the commis- 
 sioners could neither be considered as having done a judicial 
 act, nor as having represented the assignees, so as to imply 
 that they assented to the defendant's demand ; and that it 
 would only be sufficient evidence against the assignees, if it 
 could be shown, that ihcT/ acfmoiioledgcd that the proof v/as (8) 
 
 (1) MUward v. Forbes, 4 Esp. (5) Beady v. Harrison, 1 Star. 
 172. 60. 
 
 (2) Falconer v. Hanson, 1 Camp. (6) Ex parte Campbell, 2 Rose, 
 171. 51. 
 
 (5) Wilson V. Poidter, 2 Str. 794. (7) Ex parte Coles, Buck, 242- 
 14) 5Atk. 415. (8) Pirie V. Mennett, 3 Camp. 
 
 279. 
 3 E 3
 
 790 
 
 or EVlDENCli 
 
 [Ch. 19. 
 
 Of the de- 
 positions. 
 
 just. There seems, indeed, an insuperable difficulty as to 
 the admission of such evidence, according to the principles 
 which regulate proceedings at law, — where a man is not 
 permitted to substantiate a demand by his own oath. 
 Old wit- An old witness has been allowed to refer to his de- 
 
 ness al- position (made some years before) as to the proof of an act 
 refer to his of bankruptcy, in order to refresh his memory, aud thereby 
 deposi- ascertain the date of it. (1 ) 
 
 At ■ ht Those depositions only, which are read in support of the 
 of opposite party's case upon the trial, are to be considered as given in 
 party to evidence ; and the opposite party has no right to inspect any 
 other deposition, for the purpose of cross-examining a wit- 
 ness; but he may afterwards call for the deposition of the 
 witness, and read it in evidence for the purpose of contradict- 
 ing him. (2) So, as we have already seen, upon a bill filed 
 by the assignees for a discovery, the defendants will not be 
 permitted to look into their depositions, in order to pre- 
 No gene- P^re their answer. (3) The proceedings are, in fact, kept 
 ral nght of foj. ^q benefit of the creditors, and there is no general 
 ' right given to inspect them as public documents. 
 
 come out 
 of proper 
 custody. 
 
 positions 
 upon the 
 trial. 
 
 Whether 
 the soli- 
 citor 
 bound to 
 produce 
 proceed- 
 ings. 
 
 Before 
 they are received in evidence, it must be shewn, that they 
 came out of the proper custody, namely, that of the solicitor 
 to the commission ; otherwise, the hand-writing of one of 
 tlie commissioners who took them must be proved. (4) 
 
 It is a point frequently made at Nisi Priiis, whether the 
 solicitor to the commission is bound to produce the pro- 
 ceedings, when served with a sicbpcena duces tecum. Lord 
 Kenyon is reported in one case to have said, that he was 
 not only not bound to produce them, but' that it would be 
 criminal for him to do so (5) ; and Lord Chief Justice 
 Abbott, in another case, held, that the solicitor was not 
 bound to produce them in a collateral action, to which 
 neither the assignees nor the bankrupt were parties — 
 
 (1) Vaughun v^ Martin, 1 Esp. (3) Bodcn v. Dallow, 1 Aik.280. 
 440. ante, 728. 
 
 (2) Slac/c V. Thome, 4 Camp. (4) CoUinso)i\, lIUlear,3Cam\}. 
 191. 670^0 /•(/ V. CVflr^f, 1 Carring. jO. 
 
 25. (5) Bcttcson V. Hatisinh, 4 Etp. 43. 
 
 22
 
 iSccL C] JN ACTIONS Jjy AND AGAINST ASSIGNEES. 791 
 
 and where the production might tend to the detriment op Of the de- 
 the assignees. (1) Mr. Justice Holroyd, however, has l^^'^'*"'"' 
 
 ruled, that where the party requiring the production of 
 
 them (though in a collateral action) had an interest in the 
 commission, the solicitor was bound to produce them. (2) 
 And in a recent case Lord Gifford held, that the solicitor 
 was bound to produce the books of the bankrupt, in order 
 that entries relating to the matter in issue, but to no other 
 matter, might be read — though there was in fact a possibi- 
 lity of the assignees being prejudiced by the result (3) of 
 the verdict. But a court of law has no jurisdiction to order 
 books or papers to be delivered to the assignees, at the in- 
 stance of the defendants — the Lord Chancellor being the 
 proper authority to which such an application should be 
 made ; the Court, however, might give the defendant time 
 to plead, until (4) the plaintiff thought proper to produce 
 them. 
 
 The Lord Chancellor may, indeed, order the production Lord 
 of the proceedings upon any occasion which he shall think Chan- 
 proper. Thus, notwithstanding a commission had been su- may 
 perseded, the proceedings under it were ordered, upon ^'^ays 
 petition, to be produced at the hearing of a cause in the produc- 
 Court of Chancery in Ireland, with a view to the bankrupt's ^'^^ of 
 examination being given in evidence ; but such an order 
 will not be granted as a matter of course. (5) 
 
 Section VI. 
 
 Of the Comj)etenci) of the Bankrupt and his Wife as Wit- 
 nesses. (6) 
 
 The bankrupt is not a competent witness in an action Bankrupt 
 
 by his assimiees, to prove either property in himself, or a "°* ^"o"^" 
 ^ & » r f r . petent to 
 
 (l) Laiiig V. Barclai/, 3 Star. 38. (4) Wilson v. Legge, 7 Moore, 
 
 ('2) Cohen v. Templar, 2 Star. 409. 
 
 260. (5) Ex parte Bvrnal, il Ves. 
 
 (~) Hawkins v. Howard, 1 Ryan 557. 
 
 & M. 64. (6) Anil sec ante, 76J. 770. 
 
 3 L 4
 
 792 
 
 QF EVIDENCE 
 
 [Ch. 19. 
 
 Compe- 
 tency of 
 bankrupt. 
 
 increase 
 the fund. 
 
 How his 
 compe- 
 tency may 
 be re- 
 stored. 
 
 In an ac- 
 tion to re- 
 cover mo- 
 ney lost at 
 phvy. 
 
 debt due to himself, or in any other manner to increase the 
 fund; for the amount of his allowance under the commission 
 depending upon the clear amount of his estate received by the 
 assignees, that right of allowance — together with his right to 
 the surplus if all his creditors are paid in full — give him a 
 direct and immediate interest in the result of the action. (1) 
 He may, however, be rendered a competent witness, by 
 releasing his right to the allowance and the surplus, and 
 obtaining his certificate (2); but he must have obtained 
 his certificate, before the release can operate to make him 
 competent ; for the prospect of obtaining it by increasing 
 the fund, is such an interest as will still render him (3) 
 incompetent. And, where an action was brought by the 
 obligee of a joint and several bond against one of the 
 obligors, who was a surety for the bankrupt, — it was held, 
 that the bankrupt (not having obtained his certificate) could 
 not be called for the defendant, as he would be liable to 
 be sued by the defendant (his surety), in case of a verdict 
 against him. (4) But in a suit in which the king is a 
 party, it has been held, that a release to the bankrupt will 
 not restore his competency, by reason that the crown is 
 not bound by the bankrupt law. (5) This reason, however, 
 appears to be very unsatisfactory ; for the rules of evidence 
 depend upon the principles of justice and common sense, 
 and do not seem to appertain in any manner exclusively 
 to the bankrupt law. In an action on the 9 Ann. c. I'i. by 
 the assignee to recover money lost by the bankrupt at 
 play, the bankrupt (who had obtained his certificate) was 
 called as a witness to prove the loss, and his competency 
 was held to be restored by three different releases ; first, 
 by the bankrupt himself to the assignee ; secondly, by all 
 
 (1) Ewens v. Gold, Bull. N. P. 
 4,3. Butler v. Cooke, Cowp. 70. 
 Ex parte Burt, 1 Madd. 46. 
 
 (L') Narcs v. Scuby, cit. 2 T. R. 
 497. 
 
 (3) Masters v. Drayton, 2 T. R. 
 496. 
 
 (4) Tow lie ndw Downing, 14 East, 
 56.5. 
 
 (5) Crawfordv. Attorney General, 
 7 Pri. 2.
 
 Sect. 6.] IN ACTIONS BY AND AdAlNST ASSIGNKES. 793 
 
 the creditors to the bankrupt ; and, thhdiy, by the assignee Compc- 
 (who was not a creditor) to the bankrupt. It was also ^'■''^.V "J 
 considered, that a year after the commission issued, it __1__. 
 might be presumed that all the creditors had proved — and 
 that a (release signed by all those who had proved) might, 
 therefore, be considered as a release by all the creditors. (1) 
 
 But no release, even after the bankrupt has obtained his Not corn- 
 certificate, will render him a competent witness to support P'^*'^"' to 
 
 • • ,n\ c -r \ ... , , Slipi)Ort 
 
 the commission (2) ; tor it the commission is not good, the the corn- 
 certificate and all the proceedings are void, and the bank- '"ission. 
 rupt would be then liable again to his debts, from v*hich the 
 certificate if valid would discharge him. Therefore, he is not 
 a competent witness to prove his own act of bankruptcy, 
 or even to explain an equivocal act, or to prove the peti- 
 tioning creditor's debt. (3) For the same reason, he can- 
 not be questioned as to any act of bankruptcy, committed 
 by him prior to that on which the commission is founded. (4) 
 And the general rule, as to his incompetency to support or Even on 
 defeat the commission, applies as well to his cross-examin- cross-ex- 
 ation, as to his examination in chief. (5) 
 
 (1) Ca}-ter v. Abbott, 1 B. & C. pears to have been decided, with- 
 444. out considering the interest of the 
 
 (2) Field V. Curtis, 2 Str. 829. bankrupt in the surplus, or his 
 
 (3) Chapman v. Gardner, 2H.B. contingent liability in case the com- 
 279. Cross v. Fo^, ibid. n. Flower mission was superseded. 
 
 v. Herbert, ibid. Hoffman v. Pitt, (4) Wyatt v. Willdnson, 5 Esp. 
 
 5 Esp. 22. Rabitt v. Gurney, 187. Binns v. Tetby, 1 M'Clell. 
 
 Mont. 482. note. There are two & G. 397. 
 
 cases, in which a contrary doctrine (5) Elsom v. Brailey, 1 Selw. N. 
 has been held to some of the po- P. 259. It is stated in the second 
 sitions in the text. In Russell v. volume of Mr. Christian's work on 
 Russell, 1 Bro. 269. the bankrupt's the bankrupt law, that if the de- 
 evidence was received when he fendant calls the bankrupt as his 
 had obtained his certificate and witness, in a case where he is com- 
 received his allowance, on the petent to give evidence, (such as 
 ground, that he was not bound to to prove that the defendant was 
 refund his allowance. And in Ox- not indebted to the bankrupt) he 
 lade V. Perchard, 1 Esp. 28G. the waves all objection to his general 
 bankrupt was permitted to explain competency, and that the bank- 
 a doubtful act of bankruptcy. But rupt may then be cross-examined 
 the last case has been over-ruled as to the requisites to support the 
 by Hoffman v. Pitt, and Chapman commission ; and for this position 
 V. Gardner ; and the former ap- he cites the case of " Assignees of
 
 794 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 Compc- 
 tcncy of 
 bankruid. 
 
 Under a 
 second 
 commis- 
 sion. 
 
 But his 
 incom- 
 petency 
 confined 
 to the af- 
 firming or 
 disaffirm- 
 ing the 
 bank- 
 ruptcy. 
 
 Under a second commission — besides the objection on 
 the ground of his interest in the surplus, and his continuing 
 liability if the commission be superseded — there is, also, 
 another objection to his competency, namely, if he has not 
 paid 155. in the pound; for his future estate in this case 
 would be always liable, unless that dividend was paid under 
 the second commission, — a liability, therefore, which gives 
 him a plain and direct interest in the event of the cause. (1 ) 
 
 But the rule that renders the bankrupt in any case an 
 incompetent witness to support the commission, is restricted 
 to evidence either affirming, or disaffirming^ the bank" 
 ruplci/ (2) ; for after obtaining his certificate, and executing 
 a release, he has been held competent to prove the hand- 
 writing of the commissioners, in order to identify the pro- 
 ceedings under the commission — the validity of the com- 
 mission depending not upon the signature of the commis- 
 sioners, but upon the facts contained in the depositions to 
 which the signature is subscribed. (3) And in an action 
 by the assignees against a judgment-creditor, who had taken 
 the goods of the bankrupt in execution, — it was ruled, 
 that the bankrupt was competent to prove, that the creditor 
 knew of his insolvency when the execution was issued. (4-) 
 So, where the bankrupt was a guarantee of a bill of ex- 
 change, and was discharged by his bankruptcy from his 
 liability on the bill, he was held not an incompetent 
 witness. (5) 
 
 Gill V. Woodmass, Bull. N. P. 38. ;" 
 but the author has looked in vain 
 for such a case or position in the 
 5th edition of that book. It is 
 somewhat remarkable too, that 
 Mr, FhiUipps in his able work on 
 Evidence, vol. ii. 284. note (5.) 
 thinks this point to be clear, though 
 he finds no authority for it but 
 that of Mr. Christian ; whilst in 
 vol.i. page 64. he states the rule, 
 as to the incompetency of the bank- 
 rupt, to apply to the cross-examin- 
 ation, as well as to the examination 
 in chief. 
 
 (1) Kennett v. Greenwoollers, 
 Peake, 3. ; and see section 127. 
 
 (2) Per Lord EUenborough, 
 1 Star. 154. 
 
 (3) Morgan v. Prior, 2 B. & C. 
 14. 3 Star. 58. 
 
 (4) Reed v. James, 1 Star. 134. 
 
 (5) Brind v. Bacon, 5 Taunt. 
 183. It does not appear, how- 
 ever, from the report of this last 
 case, who were the parties to the 
 action, what was the nature of it, 
 or what were the facts which the 
 bankrupt was called to prove. It
 
 Sect. 6.] IN ACTIONS BY AND A(iAlNST ASSIGNELS. 795 
 
 It is also clearly established, that a bankrupt may be a Compe- 
 
 witness to diminish the fund, though he has not obtained ^f"^^ '^ , 
 
 , ° . banknipt. 
 
 his certificate — because, in so doing, he speaks most mani- 
 
 festly against his own interest ; for he may not only defeat 'j''" J?''*'' 
 
 his title to the benefit which the law allows him if the fund unccrtifi- 
 
 is of a certain amount, but he risks the displeasure of all catcd may 
 1-1 T / \ T • o • 1 t'^ called 
 
 nis other creditors. ( 1 ) In an action oi assumpsit, there- to diminish 
 
 fore, for goods sold and delivered to the defendant, it was <-'>« '"""J- 
 determined that a witness, though he had been twice bank- 
 rupt and had not obtained his certificate, was competent 
 to prove (on the part of the defendant) that the goods had 
 been delivered on the account of the bankrupt, and not on 
 that of the defendant — the direct tendency of such evidence 
 being, to diminish the fund divisible amongst (2) the bank- 
 rupt's creditors. There may, however, be cases (as has 
 been justly observed by a learned writer on the law of 
 Scotland (3) ), where it may happen to be the bankrupt's 
 interest, with a view to his certificate, to diminish the 
 general divisible fund, by introducing some creditors who 
 will carry him through all his difficulties. But, as this 
 proceeding would be a downright fraud, and one which 
 must be concocted in perjury, there seems to be no reason 
 why the bankrupt should not be as much deterred from 
 giving false evidence by the penalties attached to that 
 offence, as any other witness who has a peculiar interest to 
 serve. And when it appears, moreover, that the bankrupt 
 is attempting to favour any one creditor at the expense of 
 the others, his evidence in such a case (4) will, of course, be 
 received with great suspicion. A certificated bankrupt 
 has accordingly been held to be a competent witness for any 
 
 was contended that the bankrupt (l) Langdcn v. Walker, cit. 
 
 was inadmissible, on the ground, Cowp. 70. 
 
 that though the principal debt was (2) Butler v. Cooke, Cowp. 70. 
 
 barred by the certificate, yet the (3) See Bell's Com. vol.i. 493. 
 
 costs consequential to it were not sect. 11 26. 
 
 barred ; but the Court determined (4) And sec 1 Phill. on Evid. 65. 
 
 that the costs followed the debt.
 
 796 
 
 OF EVJDENCE 
 
 [Ch. 19. 
 
 Compc- 
 lency of 
 bankrupt. 
 
 Bankrupt 
 cannot by 
 j)Ieading 
 his cer- 
 tificate, be 
 examined 
 for a co- 
 tlcfendant. 
 
 Unless 
 plaintiff 
 enters a 
 7iolle j)rO' 
 sequi. 
 
 creditor, whose claim against the bankrupt is barred by 
 the certificate. ( 1 ) 
 
 Where a bankrupt is one of several defendants in an 
 action, he cannot, by pleading his bankruptcy, be admitted 
 to give evidence for the other defendants, notwithstanding 
 he has obtained his certificate ; for in the event of a verdict 
 for the plaintiff, he would be liable for costs. Therefore, 
 in an action against a bankrupt and his partner, the bank- 
 rupt was held not competent to prove that the goods were 
 sold to such partner onl3\ (2) Neither will a bankrupt, 
 on proof of his certificate in the progress of the trial, be 
 permitted to take a verdict, for the purpose of qualifying 
 him as a witness for his co-defendants. (3) As where he 
 was sued with his other partners on a promissory note, he 
 could not thus be called as a witness to prove an alteration 
 in the note, (•i) But where, upon a plea of bankruptcy by 
 one of several defendants, the plaintiff enters a nolle prose- 
 qui as to him, the bankrupt is thereby rendered a compe- 
 tent witness for the other defendants. (5) 
 
 Bank- 
 rupt's wife 
 not com- 
 petent to 
 support 
 commis- 
 sion. 
 
 The wiyb of the bankrupt is no more competent to sup- 
 port the commission than the bankrupt himself, on the 
 well known principle of law, that a perfect unity of interest 
 subsists between husband and wife. And the power, which 
 is given to the commissioneis by the 37th section of the new 
 act, to examine the wife as to the discovery of the bank- 
 rupt's property, is limited to that express purpose, and to 
 the commissioners alone, and does not extend to render 
 her a competent witness for any other purposes, or before 
 any other tribunal. (6) 
 
 But in an action of trover by assignees against bankers 
 to recover a promissory note, alleged to have been paid by 
 
 (1) Moody V. King, 2 B. & C. (4) CwmV v. CAi/rf, 3 Camp. 283. 
 
 558. (.5) Moody \. King, supra; and 
 
 (2) Raven \, Dunning, sEsp. 25. see 1 Phill. on Evid. G5. 77. 
 (•>) Emmet v. Butler, 1 Taunt. (6) And sec 2 Phill. Ev. 284. 
 
 599. 1 Moore, 322.
 
 Sect. 6.] IN ACTIONS HY AND AGAINST ASSIGNEES. 797 
 
 the bankrupt in contemplation of bankruptcy, and on which Compc- 
 
 they claimed a lien, — Lord Kenyon admitted the evidence f'^"i^ '^, 
 , "^ . •' bankrupt. 
 
 of" the bankrupt's wife, who was called to prove, that it 
 
 was paid to the bankers in contemplation of bankruptcy — 
 thinking that she was an indifferent witness between the 
 parties ; inasmuch as if the assignees recovered, the de- 
 fendants would be then creditors against the bankrupt's 
 estate to the amount of the note. ( 1 ) But it seems doubtful 
 whether tliis decision could, upon strict principle, be sup- 
 ported ; for if the assignees succeeded in the action, the 
 general fund would be augmented by the amount of the 
 note ; and though the bankers might prove it under the 
 commission, yet, if the bankrupt's estate did not pay 205. 
 in the pound, the divisible fund would be finally increased 
 by the difference between the amount of the note, and the 
 amount of the dividends which the bankers would receive 
 upon their proof. 
 
 The declarations of the bankrupt made before his hank- Astobank- 
 
 ruplcij. as to the existence of the petitioning creditor's debt, ^\^^ \. 
 
 "^ . . . . . clarations 
 
 we have seen (2), are receivable in evidence as an admis- and letters 
 
 sion of the debt ; for the bankrupt then had no interest to ^^^°^^ ***^ 
 make such admission ; therefore the same objections do ruptcy. 
 not apply to this evidence, as to that given qfte?- his hank- 
 imptcy in support of the commission. Accordingly the 
 bankrupt may allow his attorney (employed by him before 
 his hanknqHcy) to give in evidence privileged communica- 
 tions then made, though offered in proof of the act of bank- 
 ruptcy. ('>) But, in an action brought hy the bankrupt 
 against an assignee to try the validity of the commission, 
 any admission of the bankrupt, though made after the 
 bankruptcy, would be evidence against the bankrupt him- 
 self. So the bankrupt's declarations at the time of his 
 departing from his dwelling-house, or absenting himself, 
 
 (1) Jourdaine v. Lefevre, I Esp. (3) Merle v. More, 1 Ry. & M. 
 66. 390. 
 
 (2) Ante, 763.
 
 798 ^^ EVIDF.NCF. [Ch. 19. 
 
 bankrupt. 
 
 Compe- are (as we have seen (1) ) properly received in evidence, as 
 ^bnnK-Hif. shewing the nature of his absence ; though, in strictness, 
 the declaration should accompany the act — or, at least, if 
 not precisely contemporaneous, it should be so connected 
 with it, that the declaration may be properly considered as 
 the result and consequence of the co-existing motives. (2) 
 Thus any letter of the bankrupt written previous to his 
 bankruptcy, and nearly contemporaneous with the act done 
 by him, is admissible in evidence to explain the motives of the 
 act. And in a very recent case at Nisi Prius (which was an 
 action brought by assignees to recover back money paid to a 
 defendant on the ground of a fraudulent preference), — Lord 
 Chief Justice Best acted up to the full extent of this principle, 
 by admitting a letter of the bankrupt in evidence (though writ- 
 ten five months before the commission issued) explaining the 
 embarrassed state of his affairs — in order to shew that, when 
 the bankrupt made the particular payment in question to the 
 defendant, he had his bankruptcy then in contemplation. (3) 
 The general rule, however, and the most correct one, ap- 
 pears to be, that the declarations of a bankrupt ought not 
 to be admitted to explain any past transaction, which at the 
 time of making the declaration was completely finished. (4) 
 For to admit such declarations would be, in effect, to re- 
 ceive (as Mr. Phillipps justly observes (5) ) an admission 
 by the bankrupt, that he had committed an act of bank- 
 ruptcy — a fact, which the bankrupt himself would not be 
 allowed to prove ; and yet it would be much less dangerous 
 to hear the bankrupt's own account upon his oath, than 
 his bare relation to third persons at second hand. 
 
 (1) Ante, 770. C. J. Sittings Guildhall after Trin. 
 
 (2) 2 Phill. Ev. 287. T. 1826. 
 
 (3) Bacon v. Maine, cor. Best (4) Robson v. Kemp, 4 Esp. 233. 
 
 (5) Vol.ii. 287.
 
 Sect. 7.] IN ACTIONS BY AND AGAINST ASSTGNKES. 799 
 
 Section VII. 
 Of the Competency of Creditors. 
 
 A creditor of the bankrupt is not a competent witness Not com- 
 
 to increase the fund, out of which he may receive a divi- P'^'^'^"'^ ^° 
 
 . . support 
 
 dend. He cannot, therefore, give any evidence to deprive the com- 
 
 the bankrupt of his allowance. (1) It was, indeed, held in ™ssion, or 
 
 . incrctisc 
 
 one case, that a creditor (who had not proved his debt) v/as the fund. 
 
 competent to support the commission, though not to in- 
 crease the estate — on the ground, that he had no immediate 
 or certain benefit, and that it might be as advantageous for 
 the creditor to be allowed to sue his debtor, as to receive a 
 dividend under the commission. (2) But, as a commission 
 of bankruptcy passes the whole of the bankrupt's estate to 
 the assignees, and appropriates immediately to the satis- 
 faction of his debts what could only be reached remotely 
 and partially by the process of common law, it is, in this 
 respect, a proceeding evidently favourable to the creditors ; 
 and therefore in a later case, a creditor (though he had not 
 proved) was not allowed to give evidence in support of the 
 commission, under which he might afterwards prove and 
 receive a dividend. (3) For it is not enough, that the cre- 
 ditor has not availed himself of the commission — it ought 
 to be certain that he never will — in order to render him 
 competent. (4) And Lord Ellenborough, who had formerly 
 been of a different opinion (5), held afterwards, that a credi- 
 tor, though he had not proved, was yet incompetent to 
 prove an act of bankruptcy (6) ; for that the commission 
 
 (1) Shuflkwartkv. Bravo, I Sir. (3) Adams v. Malkin, 3 Camp. 
 507. Eggleshamv. Haines, 2Wm. 543. 
 
 11. (4) Per Lord Eldon, 1 Rose, 392. 
 
 (2) Williams v. Stevens, 2 Camp, (note); 2V. & B. 177. 
 301.; and see Rex v. Bullock, (5) 2 Camp. 301. 
 
 1 Taunt. 71., where the Court con- (6) Crooke v. Edtuards, 2 Star, 
 sidered, that the comraissionei's 502. 
 might receive evidence from a cre- 
 ditor who had not proved.
 
 800 
 
 Compe- 
 it-net/ of 
 creditors. 
 
 Compe- 
 tent to 
 defeat the 
 commis- 
 sion. 
 
 But a cre- 
 ditor wiio 
 has sold 
 his debt 
 is com- 
 petent. 
 
 Compe- 
 tent to a 
 certain 
 extent in 
 commis- 
 sion 
 against 
 members 
 of parlia- 
 ment. 
 
 OF EVIDENCE 
 
 [Ch. 19. 
 
 I 
 
 brought a divisible fund within his reach, and by sup- 
 porting the commission, the creditor was enlarging his 
 means of satisfaction. 
 
 But a creditor, it has been ruled, is a competent witness 
 to overthrow the petitioning creditor's debt. ( I ) 
 
 And a ci-editor who has sold his debt, or agreed to sell 
 it, is competent to give evidence either in support of the 
 commission, or to increase the fund. For, in this case, the 
 interest which he once had in enlarging the funds no 
 longer exists ; and though a debt cannoi strictly be assigned 
 at law, yet the assignment will be valid in a court of equity ; 
 and after such assignment the creditor is considered merely 
 a trustee for the purchaser, and as ceasing to have any 
 interest in the debt. (2) 
 
 In one species of bankruptcy, namely, that committed 
 by members of parliament (3), the act of bankruptcy must 
 necessarily be proved to a certain extent by a creditor ; for 
 the party is adjudged by the statute to be a bankrupt, 
 unless within one month after personal service of the 
 summons he shall pay, secure, or compound for his debt 
 to the satisfaction of his creditor, or enter into a bond pre- 
 scribed by the statute; and the creditor is in ordinary 
 cases, of course, the onh/ person who can prove, that the 
 debt has not been paid, secured, or compounded for to his 
 satisfaction. With reference to these negative circum- 
 stances, the evidence of a creditor must (as to this particular 
 act of bankruptcy) be admitted to that extent. But the 
 necessity which exacts this admission, also limits the extent 
 of it ; for although he must be admitted to prove what he 
 alone can prove, yet he is not to be allowed to prove what 
 can be established by the evidence of others. The circum- 
 stance, therefore, of a bankrupt being a member of parlia- 
 ment, and a banker, may be derived from other sources, 
 
 (1) In re Codd, 2 Sch. & Lef. 
 116. This, however, must be taken 
 with some qualification, for it may 
 be the interest of an execution or 
 a mortgage creditor to upset the 
 
 commission, in order to confirm 
 his own security. 
 
 (2) Grattger v. Furlong, 2 Bl. 
 1 27.'5. Heath v. Hall, 4 Taunt. 326. 
 
 (3) See ante, 85.
 
 Sect. 7.] IN ACTIONS BY AND AGAINST ASSIGNEES. 801 
 
 and ouffht not to be left to depend upon the statement of ^ompe- 
 
 the creditor. (1) creditors. 
 
 The petitioninir creditor is not a competent witness at 
 
 tlie trial to prove the commission regularly sued out, be- j„„ cre- 
 
 cause he enters into a bond to the Lord Chancellor con- ditoi" "ot 
 
 ditioned to establish the several facts, upon which the x.osupvort 
 validity of the commission depends (2) ; but his deposition 
 taken before the commissioners, we have seen, is ad- 
 missible in certain cases as proof of his debt, though he 
 
 himself cannot be called to support it. It has, however, alitcr to 
 
 been held at Nisi Prius, that he may be called to defeat the ' ^ '^^ .^'^ 
 
 ' '' "^ coin mis- 
 
 commission (3), or even to cut down his own debt. (4)) sion.. 
 
 And it has been seen (5), that the declarations and ad- 
 missions of the petitioning creditor have been received in 
 evidence, for the purpose of showing the insufficiency of the 
 debt — although, in one instance (6), the admission was 
 made by him after the issuing of the commission. But, in 
 all cases, the incompetence of the petitioning creditor may 
 be removed, by releasing his debt to the assignees — though 
 the action is brought by the bankrupt to dispute the com- 
 mission (7); and a release to the assignees alone is sufficient 
 for this purpose, without a release to the bankrupt. 
 
 A party ordered to attend as a witness, though he allege A party 
 that he is a creditor, and therefore incompetent, ought himfgif ^ 
 nevertheless not to absent himself on this oroiind ; for the creditor 
 
 111 
 
 result of his examination may establish that he is not a yprtl/i"*^' 
 
 creditor. (8) aticnd. 
 
 A commissioner has been permitted to be examined as Commis- 
 
 a witness in support of the commission, on the ground, that ^'°"'^^' 
 ^ '^ . compe- 
 
 he could not be compelled to refund the fees which he had tent. 
 
 received. (9) He has still, however, an interest in the 
 
 (1) Per Lord Eldon, Ex parte 58.; but see Hai'mer v. Davis, 
 Harcourt, 2 Rose, 20,". 1 Moore, 300. 
 
 (2) Grecnw Junes, 2 0^1^1^.411. (7) Kooiies v. Chapmeai, Peake, 
 
 (3) Ibid. 19. 
 
 (4) Lionel V. Streiton, 1 Star. 40. (s) In re Goohlie, 2 Rose, 33a 
 
 (5) Ante, 765. (9) Croolse v. Edwards, 2 Star. 
 (G) Dowdcn V. Fowle, 4 Camp. 302. 
 
 3 P
 
 802 OF EVIDENCE, &c. [Ch. 19. 
 
 Compe- future fees which he might get, if the commission were 
 *creditfrs. supported, Vttleat quanhm. 
 An assignee, who has released his individual claims on 
 
 So an as- ^^ estate, is an admissible witness to prove the petitioning 
 
 signee re- ^ ' i . i 
 
 leasing his creditor's debt ; for he is then a mere trustee, whose trust 
 
 ^^^^' is coupled with no personal interest. (1) 
 
 (1) Tomlinsonv. WUkes, 2 Brod.&B.59i7. 5 Moore, 175.
 
 803 
 CHAP. XX. 
 
 OF SUPERSEDING A COMMISSION. 
 
 Sect. 1 . Of Applications for a Supersedeas hj/ the Banhmpt. 
 
 2. Of the like by other Persons. 
 
 3. Of the Practice upon Petitions for a Supersedeas. 
 
 4. Of the Effect of the Supersedeas. 
 
 5. Of the Writ of Procedendo. 
 
 For the Costs relating to the Supersedeas, see post, Chapter 
 
 on " Costs:' 
 
 And see also, " Joint Commissions,^' ante, 128. 
 
 Section I. 
 Of Applications for a Supersedeas hy the BanJcrupt. 
 
 When a commission of bankrupt is improperly issued, or Wlien a 
 
 fraudulently obtained, or ought no longer to be proceeded ^P"''"'?" 
 •^ ' _ o o _ ^^ sion will 
 
 in, the Lord Chancellor will, on the petition of the bank- be super- 
 rupt or any other party concerned, accompanied by a ^®*^^''- 
 proper statement of the facts on affidavit, order the com- 
 mission to be superseded. But a bankrupt will not be 
 permitted to try the validity of his commission, by actions 
 against his debtors. (1) The writ of supersedeas issues 
 under the Great Seal by the order of the Lord Chancellor; 
 and the usual course pursued when the bankruptcy is 
 disputed is, to order a feigned issue to try the bankruptcy 
 at law (2) — unless, indeed, the commission appears plainly 
 to have been taken out fraudulently and vexatiously, in 
 which case it will at once be superseded. (3) 
 
 (l) Lowndes v.Cornford, iRose, (2) Ex parte Wilson. Ex parte 
 180. 18 Ves. 299. Harlow v. Crotu- Bradshaw, 1 Atk. 217. 
 ley in Exchequer, Buck, 273. (5) Ex parte aS'tozVA, 1 Rose, 147. 
 contra. Ex parte Emery, 2 Rose, 234.; 
 
 and see ante, 134. 
 
 3 F 2
 
 804 
 
 OF SUPERSEDING A COMMISSION. [Cll. 20, 
 
 Applica- 
 tions by 
 banlcrupt. 
 
 Power of 
 supersed- 
 ing dis- 
 cretionary 
 in the 
 Chancel- 
 lor. 
 
 Commis- 
 sion may 
 be super- 
 seded, 
 though 
 strictly 
 unim- 
 peachable. 
 
 Grounds 
 for the ap- 
 plication. 
 
 Delay in 
 prosecut- 
 ing com- 
 mission. 
 
 The power of superseding a commission appears to be 
 entirely discretionary in the Lord Chancellor, except in 
 one instance provided for by the new statute (1) — namely, 
 where nine tenths in number and value of the creditors 
 agree to accept a composition from the bankrupt in satis- 
 faction of their debts — in which case the Lord Chancellor 
 is expressly directed to supersede the commission. (2) But, 
 in all other cases, the same authority which enables him to 
 issue a commission, gives him a discretionary power to recall 
 it — possessing in this instance the same control over a com- 
 mission of bankrupt, as other courts are used to exercise 
 over their own writs and process ; and, indeed, he generally 
 does act in analogy to the proceedings of the other courts 
 in this respect. (3) 
 
 In some cases, where the justice of the case requires it, 
 the Lord Chancellor will supersede a commission, though 
 it may be unimpeachable on strictly legal grounds. (4<) 
 And, altliough the requisites to sustain a commission may 
 appear on the proceedings to be established, yet if the Court 
 be satisfied on affidavit of their insufficiency, it will super- 
 sede the commission without an issue. (5) 
 
 There are various causes for superseding a commission, 
 for which the party against whom it is issued, or indeed 
 any other party concerned, may ex dehito justitice apply by 
 petition to the Chancellor. It is proposed, however, in 
 the first place to consider those cases where the bankrupt 
 is entitled to apply for a supersedeas. 
 
 In the first place, if the commission is not opened until 
 a long period after it issues, — that has been always held a 
 
 (1) Sections loo, 154. 
 
 (2) There was also only one 
 case specified in the former sta- 
 tutes, in which the Lord Chan- 
 cellor was j)ositive/j/ directed to 
 supersede a commission — and that 
 was, where the petitioning creditor 
 had privately compounded with 
 the bankrupt, (5 G. 2. c. 30. s. 24.; 
 and see Ex parte Paxton, 15Ves. 
 46 1. Ex parte Freeman, 1 Rose, 
 
 380.) but the new statute (sections.) 
 omits the word " ^jnt)a/c(^-," and 
 gives the ClianccUor a discretionary 
 power in this respect. 
 
 (3) Ex parte Freeman, 1 Rose, 
 380. 
 
 (4) Ex parte Diifrcne, 1 Rose, 
 335. 1 Ves. &B. 51, 
 
 (5) Ex parte Gallimore, 2 Ro&e, 
 254.
 
 Sect. 1.] OF SUPERSEDING A COMMISSION. 805 
 
 good ground for superseding it. (1) And by a general Grounds 
 order of Lord Loughborough (2), if a town commission is liication,' 
 
 not prosecuted by the expiration of fourteen days after its 
 
 date, or a country commission at the end of twenty-eight 
 days, each is hable to be superseded; but one day further 
 must elapse in both cases, before the order for the super- 
 sedeas can issue. A commission, supersedable under this 
 order for want of prosecution, cannot be superseded by the 
 hankntpt without a petition. (S) 
 
 If the bankrupt is an infant {^) when the commission Bankrupt 
 issues, or if all the trading took place during infancy (5), ij^f^nt; 
 he may apply to have it superseded. So, if it be taken out a/e?He 
 against a feme covert, it is supersedable, though upon a covert; 
 trading prior to her marriage. (6) But when it appeared, 
 that the bankrupt had held himself forth to the world as 
 an adult and sui Juris, and had traded in that character for 
 two years, contracting debts to a considerable amount, — 
 Lord Eldon dismissed his petition to supersede the com- 
 mission, and left him to his action at law (7) ; and the same 
 rule will apply to a Je?7ie covert living apart from her hus- 
 band, and holding herself out to the world as a feme sole. (8) 
 
 A commission will also be superseded, if the bankrupt is not a 
 not a trader when the commission issues. And he is not ^^ ^^' 
 precluded from applying to supersede the commission on estopped 
 this ground, though he has even obtained his certificate from ap- 
 under it — if, upon the trial of an action by the assignees ["up^gr^ede. 
 against a creditor, their title is thus successfully resisted, 
 and the commission becomes inoperative. (9) Neither will 
 he be precluded from such an application, by having stated 
 in a petition to enlarge the time for his surrender, that he 
 has been duly declared a bankrupt. (10) But when an appli- 
 
 (1) Ex parte Pz</«fon, 2P.Wms. (5) Ex parte Moule, 14Ves.603. 
 545. Ex parte Fletcher, 1 Rose, (6) Ex parte Mear, 2 Bro. 265. 
 454. (7) Ex parte Watson, 16 Ves. 
 
 (2) 26th June 1793. Forthecon- 265. 
 structionof this order, see ante, 120. (8) Ibid. 
 
 (3) Ex parte Gale, 1 G. & J. 43. (9) Ex parte Bass, 4 Mad. 270. 
 
 (4) Exparte 5ff?-«;25, 6 Ves. 601. (10) Ex parte Jones, 11 Ves, 
 Ex parte Sydebotham, l Atk. 146. 409. 
 
 3 F 3
 
 OF SUPERSEDING A COMMISSION. [Cll. 20. 
 
 Applicft' 
 tions by 
 bankrupt. 
 
 Insuffici- 
 ent act of 
 bankrupt- 
 cy; 
 
 ■when only 
 a ground 
 for sus- 
 pending 
 the adver- 
 tisement. 
 
 Preference 
 of peti- 
 tioning 
 creditor. 
 
 cation of this nature is delayed by the bankrupt for a con- 
 siderable time, when it might have been made earlier, the 
 petition will in that case be dismissed. (1) 
 
 A commission will also be superseded, if the bankrupt 
 when it issued had 7iot committed an act of hankr-uptcy {'2) ; 
 or if he had not committed one within a long period before 
 the issuing of it. (3) But when the bankrupt applies to 
 supersede the commission on tJiis ground alone, the Court 
 will only suspend the insertion of the advertisement de- 
 claring the bankruptcy in the Gazette, and will receive an 
 affidavit of other acts of bankruptcy ; for, upon a trial at 
 law, the commission may be supported upon the proof of any 
 other act, though different from that in the adjudication. 
 If the additional affidavit, however, is not satisfactory, the 
 commission will then be superseded with costs. (4) But on 
 a petition for a supersedeas before adjudication, the Lord 
 Chancellor will not stop the commissioners from proceed- 
 ing to inquire, whether the party has become bankrupt or 
 not — merely on his oxv7i allegation, that he has not com- 
 mitted an act of bankruptcy, or is not indebted to the 
 petitioning creditor to the (5) amount of 100/. ; — but if, in 
 addition to either of these circumstances, the bankrupt 
 swears that he is solvent, and offers to bring the petitioning 
 creditor's debt into Court, the Chancellor will then restrain 
 the publication of the bankruptcy in the Gazette. (6) 
 
 So, if the petitioning creditor receives his debt, or more 
 in the pound than the other creditors, it has been held 
 that the commission may be superseded (7) ; though it has 
 been subsequently decided, that where the petitioning cre- 
 ditor after the act of bankruptcy (but before the commission 
 issued) received a sum of money from the bankrupt, which 
 
 (1) Ex parte ilfbz(/<?, supra. Ex 
 parte Kirk, 15Ves, 464. Flower 
 V. Herbert, 2 Ves, 526. Ex parte 
 Abcll, 1 G.& J. 199. 
 
 (2) Ex parte Foster, 1 Rose, 49. 
 Ex parte Fronton, ibid. 259. 
 
 'o) f'^K parte JJowes, 4 Vos. U;8. 
 (4) Ex parte JJurgcss, Duck, 
 233. 
 
 (5) Ex parte Stokes, 7 Ves. 405. 
 Ex parte Lingood, 1 Atk. 246. Ex 
 parte Hague, 1 Rose, 150. 
 
 (6) Ex piute Fletcher, 1 Rose, 
 536. 
 
 (7) Sedqucere,'whcX.\\evthcbank- 
 rupt liinisclf can for this cause 
 petition to supersede the commis- 
 sion. See Ex parte Kirk, inlra.
 
 Sect. 1.] OF SUPERSEDING A COMMISSION. 807 
 
 reduced the debt below lOOL, — thai was not a sufficient Grounds 
 ground for superseding the commission ; for that the pay- -'Z'^ atim^' 
 ment could not be retained by him against the assignees, ^— — 
 and the suing out the commission amounted of itself to a 
 disaffirmance of the payment. (1) And payment of money 
 by the bankrupt to the petitioning creditor after the siting 
 out of the commission, though it may render the commis- 
 sion supersedable, does not render it ipso facto void. (2) 
 It has been decided, also, that the bankrupt himself cannot 
 supersede the commission, on the ground of having given 
 the petitioning creditor a security for his debt in preference 
 to the other creditors. (3) 
 
 The commission will also be superseded, if the petitionitig Petition- 
 creditor is an infant when it issues ; for as he is obliged !"° u' j ^" 
 to enter into a bond to the Lord Chancellor upon strik- an infant. 
 ing the docket, he cannot, as an infant, bind himself by 
 bond. (4) And where there are several petitioning creditors 
 — each being required to give a bond — this objection 
 will equally apply. (5) So, if the petitioning creditor has Insuffici- 
 not a legal debt to the amount specified in the (6) statute — 'j'^P^ °* 
 or if the debt accrued subsequent to ani/ act of bankruptcy 
 committed by the (7) bankrupt — or is barred by the statute 
 of limitations (8) — or if the petitioning creditor had the Having 
 
 bankrupt in execution at the time of issuincj the commis- ji^"'^''iipt 
 \ I 1 1 • I p 1 1 *" execu- 
 
 sion (9), — the bankrupt, ni each or these cases, may apply tion. 
 
 to supersede it. But a mere formal defect in the affidavit 
 
 of the petitioning creditor is not a sufficient ground for 
 
 superseding the commission — as where the affidavit was 
 
 (1) Ex parte Miller, Buck, 283. (5) Ibid. 
 
 (2) Garrett v. Biddtilph, 4 Esj). (G) Ex parte HyUlard, 1 Atk. 
 104. 146. Burnahi/i case, 1 Str. ii5o. 
 
 (5) Ex parte A'zV/i, 15 Ves. 464. Medlicott' s case, i2 Str. 89!). Ex 
 
 This case was decided with re- parte Mackerness, 1 P. Wins. 259. 
 fercnce to the 5 G. 2. c. 50. s. 24.; (7) Seeiion 19. 
 bnt see now 6G.4. c.lG. s.8., by (8) Quantock v. England, 2 Bl. 
 
 which the Lord Chancellor has a 702. Horscley's case, Mosely's 
 
 discretionary power in such a case, Rep. 37. ]L\\)iii'tc Dewdncy, 15Ves. 
 
 either to supersede the coiinnission, 493. Ex parte lioj/iy, 2 Itose, 
 
 or to order it to be proceeded in. 245. 
 
 (4) Ex parte Brt/ro/c, 3Vcs. 554. (9) Burnal)y^sci\AV,i>U[n\\. Cohen 
 
 Ex parte Morton, Buck, -12. v. Ciinninghmn, S T. It. 12,7. 
 
 VOL. 1. * 3 F 4
 
 808 
 
 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Applica- 
 tions by 
 bankrupt. 
 
 Commis- 
 sion frau- 
 dulently 
 or vexati- 
 ously is- 
 sued. 
 
 for goods sold and delivered, when (at the time of making 
 it) he had previously entered up judgment in an action 
 brought for the goods ; for it is sufficient, if the creditor 
 swears to the truth and reality of the debt. (1) And when- 
 ever the petitioning creditor's debt is found insufficient to 
 support the commission, the Lord Chancellor is now em- 
 powered by the \^tJi section of the new statute, upon the 
 application of any other creditor who has proved a debt 
 sufficient to support a commission, (provided the same has 
 been incurred not anterior to the petitioning creditor's debt), 
 to order the commission to be proceeded in, notwithstand- 
 ing the insufficiency of the petitioning creditor's debt. 
 
 When a commission is fraudulently or 'vexatioudy is- 
 sued (2), it will in every such case be superseded ; and the 
 Court will in addition punish the parties concerned, by com- 
 mitting them to prison, and ordering them to pay the costs. (3) 
 And where there is nothing done under a commission, and 
 the petitioning creditor is not to be found, — this is held to be 
 such a case of fraud, as will render the commission (4) super- 
 sedable. So also, though the commission be legally valid, 
 yet if it has been taken out against good faith, or with a view 
 to enforce a compliance with an arrangement then pending 
 between the parties, — the Lord Chancellor will supersede 
 it, upon the general principle which all courts adopt to con- 
 trol the abuse of their own process. (5) In a recent case it 
 was held by the late Vice- Chancellor, that if the fraudulent 
 purpose could be defeated without superseding the commis- 
 sion, and there was no objection to it on any other ground, 
 the Court would not then interfere by granting (6) a super- 
 sedeas ; but Lord Eldon, upon appeal, in a luminous judg- 
 ment, reversed this order, saying, that when a commission 
 is so taken out, the Court will determine at once that it 
 shall not stand. (7) 
 
 (1) In re Bryant, 1 Rose. 288. 
 1 V.&B.211. 
 
 (2) Ex parte Wilson, 1 Atk. 218. 
 Ex parte Conway, 1 3 Ves. 62, Ex 
 parte Hayivood, ibid. 67 . Ex parte 
 Arroivsvdth, 14 Ves. 209. 
 
 (.">) Ex parte Thorpe, 1 Ves. ,794. 
 
 (4) Ex parte Hartop, 9 Ves. 109. 
 12 Ves. 349. 
 
 (5) Ex parte Harcourt, 2 Rose, 
 203. 
 
 (6) Ex parte Bourne, 1 Ci.&J. 
 oil. 
 
 ^7) 2G&J. 1.57.
 
 Sect. 1.] OF SUPERSEDING A COMMISSION. 809 
 
 If a commission is taken out for an express purpose, Grounds 
 foreign from its proper object — such as to determine a li^caiim.' 
 
 lease (1) — or to work a dissolution of partnership (2) — 7- 
 
 or to put an end to an action at law commenced by the gio"\™u'ej 
 bankrupt (3) — it will be superseded at the costs of those for a dif- 
 who take it out. And the same, where the object of ^^^^^^^ 
 issuing it is even meritorious — as when it is taken out its proper 
 for the purpose of facilitating a composition with the ere- <'''J^^'^- 
 ditors ; for, though in many instances the result might be 
 beneficial, yet as such a practice (Lord Eldon said) might 
 lead to much mischief, the Court would always discounte- 
 nance it. (4) It is no ground, however, for superseding a 
 commission, that it was sued out with intent to defeat a 
 previous execution, if no collusion appear on the part of 
 the bankrupt. (5) And though the petitioning creditor may 
 have really other objects in view than the mere distribution 
 of the estate — as thinking it a prudent thing to get rid of a 
 bad partner, — the Court has refused on that account alone 
 to supersede the commission, where it plainly appeared that 
 he was not influenced by any fraudulent motives. (6) 
 
 A country commission will also be superseded, which does Country 
 not include the names of two barristers, according to the gj^,-, ^^^ 
 terms of Lord Loughborough's order (7) — or when the having 
 order is evaded, by carrying the commission to be executed at "^^^ ^^^_ 
 a distant town, when it might with as much propriety be ex- risters in- 
 ecuted at another town, near which two barristers reside. (8) ^^'^^^^' 
 But when a barrister does not reside so near, as to be able to 
 attend without his travelling expences being paid, that is an 
 excuse for dispensing with the order. (9) And in one instance 
 a country commission was refused to be superseded, where 
 
 (1) Ex parte Gallimore, 2 Rose, &P.569. Ex parte Boiues, llVes. 
 424. 541. Ex parte ^/roit/sHii^A, 14 Ves. 
 
 (2) Ex parte Browne, 1 Rose, 209. Ex parte Gardner, 1 Rose, 
 151. 377. iVes.&B. 45. 
 
 (3) In re Bourne, cor. Lord (6) Exparte fF?7ica?j, Buck,459. 
 Chancellor, Sittings after Trinity 5 Mad. 1 . 
 
 Term, 1826. (7) 12th August 1800. 
 
 (4) Ex parte Bourne, 16 Ves. (8) Ex parte ^flri/w, I Rose, 58. 
 150. (9) Ibid. 
 
 (5) Menham v. Edmonton, I Bos.
 
 810 
 
 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Applica- 
 tions by 
 bankrupt. 
 
 Any com- 
 missioner 
 being a 
 creditor. 
 
 Want of 
 prosecu- 
 tion. 
 
 Two com- 
 missions 
 pending. 
 
 the ground of the application was, that it was issued to a place 
 where there were only two creditors, and which was distant 
 200 miles from the great body of the creditors ; — though the 
 Court, in this case, thought it was but just to enlarge the time 
 for the choice of assignees. (1) A country commission will 
 likewise be superseded at the costs of the petitioning creditor, 
 when the name of any commissioner is inserted, who is a 
 cr-editor of the bankrupt, — and this even on an (?.rj9ar/<? ap- 
 plication. (2) If notice of the adjudication, also, is not given 
 at the bankrupt office at some period of the twenty-ninth day 
 after the issuing of a country commission, the practice is 
 uniform to supersede it as a matter of course on the thirtieth 
 day, upon an application made for that purpose on the 
 twenty-ninth. In one case, even where the adjudication 
 did not take place until the twenty-eighth day — and, by the 
 course of the post from the place where the commission was 
 executed, it was impossible that such notice could reach 
 London by the twenty-ninth, — the Lord Chancellor refused 
 to supersede a second commission, which had been taken 
 out under these circumstances by another creditor. (3) 
 
 Two commissions cannot subsist together for the same pur- 
 pose — the seco?id is (strictly speaking) void (4), and will in 
 general be superseded. But special circumstances, as fraud 
 or laches in the petitioning creditor under the first commis- 
 sion — or an acquiescence of the other creditors for a con- 
 siderable time after the issuing of the second commission, 
 — will be aground for supporting the last commission, and 
 for superseding thejirst. (5) And the Chancellor will always 
 exercise a discretion on the subject, and support that commis- 
 sion which is most convenient, by superseding the other. (6) 
 
 (1) Ex parte Fellows, 2 Mad. 
 141. 
 
 (2) Ex parte Story, Buck, 70. 
 Ex parte Mathctvs, 1 G. & J, 164. ; 
 and see Lord Eldon's General Or- 
 der, July 25th, 1817, and Ex parte 
 Prosser, 2 Rose, 370. Ex parte 
 Crundwell, 2 Mad. 292. 
 
 (5) Ex parte Henderson, 2 Rose, 
 190.; but see Ex parte Sojipit, 
 Buck, 8 1 . 
 
 (4) Ex parte Buller, 1 Rose, 
 l56.; and see ante. Chapter V. 
 Section 4. 
 
 (5) Ex parte Broivn, 2 Ves. jun. 
 67. Ex parte Proudfoot, 1 Atk. 
 253. 
 
 (6) Ex parte Laylon, 6 Ves. 434. 
 Ex parte Hardivickc, ibid. Ex parte 
 Lees, IC Ves. 472. Ex parte Ma- 
 vor, 1 9 Ves. 539.
 
 Sect. 1.] OF SUPERSEDING A COMMISSION. 811 
 
 Thus, where a period of fifteen years had elapsed since a Grounds 
 first commission issued, during which the bankrupt was pUcation. 
 
 permitted to carry on trade, — a petition to supersede the ' 
 
 second commission by the petitioning creditor under the 
 first (who was the bankrupt's father-in-law, and must have 
 had some knowledge of the bankrupt's transactions during 
 all that period) was dismissed with costs, — Lord El- 
 don saying, that if the first commission had been kept 
 on foot fifteen years, with the view of protecting the bank- 
 rupt, and enabling him to defraud all those with whom he 
 might deal in subsequent transactions, he would rather 
 supersede that commission, at the instance of the assignees 
 under the second, than the second at the instance of the 
 assignees under ihejirst.[\) So, where the petitioning 
 creditor was prevented from prosecuting ^ first commission 
 by the artifices of a person, who was desirous of covering 
 certain transactions between himself and the bankrupt, 
 by the lapse of two months after it had issued, — the 
 Lord Chancellor directed a writ of ■procedendo to issue 
 for the prosecution of that commission, notwithstanding 
 it had in fact been superseded, and two other commis- 
 sions subsequently sued out. (2) So, also, where the parties 
 under the first commission place themselves by contract 
 in a different situation, from what they were in when 
 the first commission issued, the first will be super- 
 seded, and the second supported. (3) And cases have oc- 
 curred, where, upon a bankrupt under a subsisting old 
 commission applying to supersede a new one, the Lord 
 Chancellor has refused to interpose — if the persons claim- 
 ing beneficially under the old commission did not mean to 
 interfere with the effects under the new one; though, at tlie 
 same time, this will not prevent the first commission from 
 being set up as a bar to an action under the second. (4) The 
 bankrupt, however, will be justified in applying to supersede 
 
 (1) ExparteLccs, 16 Ves. 472. (4) Ex parte Rhodes, 15 Ves. 
 
 (2) Ex parte Knight, 2 Rose, 545. Ex parte C/rew, 16 Ves. 236. 
 319. Ex parte Irvine, 1 Mad. 74. 
 
 (•3) Ex parte BiiUen, 1 Rose, 136.
 
 812 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 bankrupt. 
 
 commis- 
 sion. 
 
 Applica- a second commission, where a creditor (who might have 
 bankrunt Proved under the first) is the petitioning creditor under 
 the second — or where it is taken out under circum- 
 stances making it not expedient, that it should remain 
 ostensibly in force, whilst void in law. But, if the bank- 
 rupt applies to have it superseded, on the principle, that all 
 the property is vested in the assignees under the first com- 
 mission, — the Lord Chancellor may order him to bring all 
 his property into Court, that the equities between the two 
 classes of creditors may be settled. (1) It is no ground for 
 superseding a joint commission against two partners in 
 this country, that a prior separate commission against 
 one of them is existing in Ireland. (2) 
 Third Where a third commission issues against a bankrupt, 
 
 who has not paid \F>s. in the pound under the second, it 
 would seem now, that the Lord Chancellor would super- 
 sede the third commission, on the ground that (by the 
 \21th section of the new act) all his future property is 
 declared to vest in the assignees under the second commis- 
 sion. (3) 
 A separate Another cause for superseding a commission is, as we 
 commis- have before seen, when separate and joint commissions 
 sion pend- are issued against the different members of a partner- 
 "^* ship; — in which case the Lord Chancellor will, for the 
 
 convenience of administering the joi7it effect s^ in general, 
 supersede the separate commission, and establish the joint 
 one. (4) 
 Offer to The Lord Chancellor has refused to stay the progress 
 
 dito^rl^'^' °^^ commission, upon a mere offer to pay into the name of 
 the Accountant-General a fund alleged to be sufficient for 
 the payment of the creditors. (5) And where the bankrupt 
 proposed, that a freehold estate (of which he was pos- 
 sessed, and which he alleged was more than adequate to 
 the payment of his debts) should be sold, and the proceeds 
 
 (1) Ex pa:rte Lees, 16 Ves. 474. Ex parte Hodgkinson, 2 Rose, 175. 
 
 (2) Ex parte Cridland, 2 Rose, Ex parte j5?/£>A-/e, iG. &J.32. 
 164. 5 V. & B. 94. (4) And sec ante, 129. 
 
 (3) Ex parte J?rt/rer, 1 Rose, 452. (5) Ex parte Kemp, 2 Rose, 5. 
 
 note {n).
 
 Sect. 1.] OF SUPERSEDING A COJMMISSION. 813 
 
 applied to that purpose, — Lord Eldon thouj^lit he could Grounds 
 not interfere, without being perfectly satisfied that the pro- I'lication^' 
 posal would be fully and speedily effectuated. (1) 
 
 But if all the creditors (who have proved debts under the Consent of 
 commission) agree to have it superseded, the bankrupt may, c''^''"^"''^' 
 in this case, petition for a supersedeas (2) ; the consent, 
 however, of the creditors must be certified by the commis- 
 sioners ; and this proceeding will not be dispensed with, 
 thouffh all the creditors have even received 20s. in the 
 pound — and though some of them reside abroad. (3) 
 When, however, two creditors (who had been, as well as 
 all the others, paid their debts in full) could not be found, 
 but their securities had been delivered up with receipts 
 upon them, and their signatures satisfactorily proved, — the 
 Lord Chancellor thousjlit this was fji'ound sufficient for 
 superseding the commission. (4) Any secret preference of 
 a creditor, by the bankrupt giving him money or security 
 to induce him to give his consent, will be considered frau- 
 dulent as against the other creditors ; therefore, when the 
 bankrupt confessed a judgment to a creditor, in consider- 
 ation of his not opposing the bankrupt's petition for a 
 supersedeas, — the Court of Common Pleas set it aside, even 
 on the application of the bankrupt. (5) By a general order 
 of Lord Eldon (6), no commission can now be superseded 
 on the ground of the consent of all the creditors, until after 
 the second meeting (7) ; and the commissioners are directed 
 at that meeting to adjourn the choice of assignees, if they 
 are satisfied that such a petition will be presented. 
 
 Under this head of consent of creditors may be classed the Composi- 
 provision in the new statute, as to what is termed the compo- tract '^'^"* 
 sition contract, which is taken from the Scotch sequestration 
 act, — and which, having been frequently acted upon with 
 
 (1) Ex parte 5;3/aHf, 2 Rose, 5. (6) 21st August 1818, Buck, 
 
 (2) Ex parte Jones, 8 Ves. 328. 281. 
 
 (.3) Ex parte JacA-i-o«, 8 Ves. 533. (7) The practice before was to 
 
 Ex parte Milner, 1 9 Ves. 204. ; supersede it at any time after the 
 
 and see 1 Atk. 155. 244. first meeting. Ex parte Duck- 
 
 (4) Ex parte King, 2 Ves. 40. worfk, 16 Ves. 416. Ex parte Laiv, 
 
 (5) Thomas v. Rhodes, 5 Taunt. 4 Mad. 273. 
 478.
 
 814 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Applica- advantage in that country, it has been thought advisable to 
 bmikrupt. engraft on the English bankrupt law. By section 133. it is 
 provided, that if at any meeting of creditors after the bank- 
 rupt shall have passed his last examination (whereof and of 
 the purport whereof twenty-one days notice shall have been 
 given in the Gazette) the bankrupt or his friends shall make 
 an offer of composition, or security for such composition, 
 which nine-tenths in number and value of the creditors 
 assembled at such meeting shall agree to accept, another 
 meeting for the purpose of deciding upon such offer shall 
 thereupon be appointed, whereof a similar notice shall be 
 given ; and if at such second meeting nine-tenths in number 
 and value of the creditors then present shall also agree to 
 accept such offer, the Lord Chancellor shall and may, upon 
 such acceptance being testified by them in writing, super- 
 sede the commission. 'By section IS-t., any creditor, whose 
 debt is below 20/., is not to be reckoned in number, but 
 the debt is only to be computed in value. Any creditor (to 
 the amount of 50/.) residing out of England must be per- 
 sonally served with a copy of the notice of the meeting so 
 long before, as that he may have time to come and vote at it ; 
 and he is entitled to vote by letter of attorney, executed and 
 attested in the manner required for creditors voting in the 
 choice of assignees. If any creditor agrees to accept any 
 gratuity, or higher composition, for assenting to such offer 
 on the part of the bankrupt, he is liable to forfeit the debt 
 due to him, together with such gratuity or composition. 
 And the bankrupt must (if required) make oath before the 
 commissioners, that there has been no such transaction 
 between him (or any other person with his privity) and any 
 of the creditors — and that he has not used any undue means 
 or influence with any of them, to obtain their assent to the 
 offer of composition. 
 General As no provision is made in the act with respect to the 
 order as to manner of holding these two meetings, or in which evidence 
 the m^t- ^^ ^° ^^ given of the performance of the several particulars 
 ings, &c. contained in the above sections, the following directions 
 have been established, by a general order of Lord Eldon
 
 Sect. 1.] OF SUPEUSEDING A COMMISSION. 815 
 
 very recently made. (1) At the first meetin<y a minute Grounds 
 must be taken by the solicitor or the assignees, ot trie pUcation. 
 
 names of the several creditors present, and qf the amount 
 
 of their several debts standing in proof upon the pro- 
 ceedings — distinguishing such of them as shall assent 
 to the above composition. The second meeting is re- 
 quired to be held at a meeting of the commissioners, 
 who are directed, by deposition of witnesses and docu- 
 mentary evidence, as to them shall appear to be proper, to 
 inquire and ascertain whether the requisites of the act pre- 
 vious to such meeting have been duly performed, and to 
 certify the same to the Lord Chancellor, together with the 
 proceedings which have taken place at such second meet- 
 ing. For the better information, also, of all parties inter- 
 ested, the commissioners are ordered to state in their 
 certificate, what proportion in number and value the cre- 
 ditors assenting to the composition bear to the creditors 
 who have proved debts to the amount of 201. and upwards, 
 and also whether any sale has been made of the bankrupt's 
 estate, in order that provision may, if expedient, be made 
 for confirming the same. 
 
 When questions on this new enactment of the composition Decisions 
 contract may come before our courts for decision, they will, °^ "1^, 
 probably, be guided in some measure by the determinations courts 
 of the Scotch tribunals, which have already taken frequent ^"'^^• 
 cognizance of its different provisions. These are all collected 
 in Mr. Bell's Commentaries on the Laws of Scotland (2), 
 but though useful to refer to in a case of difficulty, cannot 
 be given as a precise authority to the English lawyer. It 
 seems that the Scotch courts hold, that an offer to the cre- 
 ditors of a sum in gross (or what they quaintly term a slump 
 sum) is not a composition within the meaning of the above 
 provision — deeming it necessary that each creditor shall 
 be offered a rateable proportion of his debt ; but after this 
 offer has been made, any additional composition of so much 
 per pound, though payable on a contingency, is allowed to 
 be tacked to it. The security offered by the bankrupt or 
 
 (1) 27th June 1826. (2) Vol. ii. p. 484.
 
 816 
 
 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 iions by 
 bankrupt. 
 
 Bankrupt 
 cannot 
 apply be- 
 fore sur- 
 render. 
 
 Except 
 when. 
 
 his friends, they likewise hold, must extend to the ^whole 
 composition; — and, therefore, a composition of 5s. in the 
 pound, with security only for 45., and the bankrupt's own 
 bill for the remainder, has been decided to be a bad offer. 
 The creditor's assent to the composition at the first meeting 
 is, also, held not binding upon him at the second ; the^rs^ 
 meeting being considered (as indeed plainly appears from 
 the above enactment) to be intended only for receiving the 
 proposal of the bankrupt, or his friends — and the second 
 to be the one for finally deciding on it. 
 
 It is a general rule, that the bankrupt cannot petition 
 to supersede the commission before he has surrendered to 
 it ; therefore, he cannot apply for a supersedeas before any 
 meeting has been held under the commission. (1) And if 
 the time for his surrender has expired, he must first apply 
 by petition for leave to surrender, before he can petition for 
 a supersedeas. (2) This rule, however, has been sometimes 
 dispensed with, where there was no intention in the bank- 
 rupt to defraud his creditors by not appearing within the 
 time appointed, and when his absence proceeded from 
 ignorance of the consequence, or from accident — or where 
 he was out of the country, and never heard of the issuing 
 of the commission. (3) And, indeed, it was the custom 
 with Lord Macclesfield, when the bankrupt's omission to 
 surrender arose from any of these causes, to supersede the 
 commission on that account alone, in order to prevent a 
 prosecution against him for felony. (4) In one case, too, 
 after the adjudication. Lord Eldon (upon being satisfied 
 that there was not a sufficient act of bankruptcy) super- 
 seded the commission at the costs of the petitioning creditor, 
 although the bankrupt had not previously surrendered. (5) 
 And where the application is made by the petitioning 
 creditor — and it appears that the bankrupt was out of the 
 
 (1) Ex parte Stokes, 7Ves.405. 
 Ex parte Jones, 1 1 Ves. 409. Ex 
 parte Wilkinson, 1 G. &J. 587. 
 
 (2) Ex parte Jones, 8 Ves. 528. 
 
 (3) Per Lord Hardwicke, Ex 
 parte Woody 1 Atk. 222. Ex parte 
 
 Lavender, 1 Rose, r^5. Ex parte 
 Hopkins, ibid. 228. 
 
 (4) 1 Atk. 222. 
 
 (5) Ex parte Foster, 1 Rose, 49.; 
 and see Ex parte Prosfon, ibid. 
 259.
 
 Sect. 1. J OF SUPERSEDING A COMMISSION. 817 
 
 country, and had not heard of the commission — and all the Grounds 
 
 creditors (who have proved) subscribe their names to the /"f '^'^ '^^^ 
 , , . , ..... . plication. 
 
 petition — and the assignees also testily their consent ; — it 
 
 seems, then, a matter of course, to supersede the commis- 
 sion without any surrender of the baiikrujit. (1) If the 
 bankrupt dies before the last meeting of the commissioners, 
 and is thus by the act of God prevented from surrendering, 
 the Court will, then, upon the petition of his personal 
 representative, make the same order as if he had sur- 
 rendered. (2) But where the bankrupt had died abroad 
 after the third meeting without surrendering, it was de- 
 termined, that a petition by his representative to supersede 
 a commission could not be heard, unless it made out a 
 case, that would induce the Court to permit a surrender if 
 the bankrupt were living. (3) 
 
 A bankrupt, who is attainted of felony, cannot be heard Bankrupt 
 
 by petition to supersede the commission, whether his at- ""lifted 
 ^ • 1 c ^ • • n 1 • 1 .1 cannot 
 
 tainder arose out or the commission oi bankrupt, or is wholly petition. 
 
 irrelevant to it (4); for a person attainted can be heard 
 only in a court of justice, for the direct purpose of revers- 
 ing the attainder, and not in the prosecution of a civil 
 right. (5) But a bankrupt, in custody under a commitment But com- 
 
 mitment 
 
 (1) Ex parte HoiMnSy 1 Rose, a civil action, or a criminal prose- 
 228. cation. See Ex parte Roberts, 
 
 (2) Ex parte Wliittington, Buck, l Mod. 72. Sir W. Evans recom- 
 235. mends a middle course ofproceed- 
 
 (3) Ex parte Crowther, Buck, ing, namely, to give tiie party an 
 480. With respect to the above opportunity of submitting the ques- 
 rule of practice, that a party shall tion in each particular case to the 
 not be allowed to apply to super- consitleration of the Court, upon 
 sede a commission without a pre- a particular motion; and that the 
 vious surrender to the commis- surrender should be dispensed with, 
 sioners, it undoubtedly seems ra- whenever the opposition to the 
 ther inconsistent, that he should commission appears to arise from 
 thus be required, in a certain a fair and real objection to its va- 
 degree, to submit to th" very au- litiity, and not from any vexations 
 thority which he insists to be in- or improper motive. See Letter 
 valid — and the validity of which, to Romilly, s. xxvi. 
 
 also, without any such surrender, it (4) Rex v. Bullock, 1 Taunt. 82. 
 
 is competent for him to contest (as (5) Ibid. 14 Ves. 452. 
 the law at present standi) either in 
 
 3 G
 
 818 
 
 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Applica- 
 tions by 
 bankrupt. 
 
 by com- 
 missioners 
 does not 
 wholly in- 
 capacitate 
 him. 
 
 Not pre- 
 cluded by 
 a judge's 
 order. 
 
 What no 
 grounds 
 for apply- 
 ing. 
 
 As to mis- 
 nomer. 
 
 As to 
 misde- 
 scription. 
 
 by tlie commissioners for prevarication, is not thereby abso- 
 lutely incajiacited from petitioning for a supersedeas (1) — 
 especially when all his creditors consent to the commission 
 being superseded (2) ; though, in one instance of this kind. 
 Lord Eldon refused to supersede the commission, even 
 with the consent of the creditors — considering that the 
 bankrupt, by not answering to the satisfaction of the com- 
 missionei's, was guilty of a great offence. (3) Where the 
 bankrupt was under terms (b}' a judge's order) not to pro- 
 ceed in a petition then pending to supersede a commission, 
 Lord Eldon said, that he would not hold a man precluded, 
 by an order of that kind, from applying to the Great Seal 
 on a subject within its peculiar jurisdiction. (4) 
 
 It is no ground for the bankrupt's application to super- 
 sede a commission, that he is described in it by a different 
 name, if that was the name which he had himself adopted 
 and used ; for the law will not permit a man to say that 
 he is not known by a name, which he has himself held 
 forth to the world as his (5) right one. And where there 
 is only one commission issued, and the name is idem sona?is, 
 a variance in the spelling does not seem to be material. (6) 
 Nor will a commission be superseded on account of a mis- 
 description of the bankrupt, if he is well known by the de- 
 scription (7) in the commission; nor where a feme covert 
 trader by the custom of London was by mistake described 
 as a ividotv. (8) But where the bankrupts were described 
 as " of Sim Whar/ London and Wolverhampton" — and it 
 appeared they had no residence or establishment whatever 
 at Wolverhampton, — the commission was in this case super- 
 seded. (9) But " L. LL M., of Finsbury Square, in the 
 
 (1) Ex parte Maginnis, 1 Rose, 
 60. 18 Yes. 289. 
 
 (2) Ex parte Browne, 2 Swanst. 
 290. 
 
 (3) Ex parte Bean, 17Ves. 47. 
 iRose, 211. 
 
 (4) Ex parte Dick, 1 Rose, .51. 
 
 (5) Ex parte Smith, 2 Rose, 25. 
 
 (6) Re Baldwin, 2 Rose, 20. ; 
 and see post. 
 
 (7) Ex parte Horsley, 2 Mad. 1 1 . 
 
 (8) Ex parte Carrington, 1 Atk. 
 206. 
 
 (9) Ex parte Beck with, 1 G. & 
 J. 20.
 
 SeCt.2.] OF SUPERSEDING A COMMISSION, 819 
 
 city of London^* — instead of the " coiiniij of Middlesex" — Grounds 
 
 is not a material misdescription. (1) -^"f ^'[^ ^P' 
 
 ^ ^ ' _ ^ plication. 
 
 Altlioiigii there may be a strong probability, that the 
 
 person (asjainst whom a commission is taken out) is not a ^ f r.S ^^°' 
 
 , . c • • -^11 babihty. 
 
 proper object tor a commission, yet if the depositions 
 
 establish the bankruptcy, such probability merely will not 
 
 be a ground for the court's interference to stop the progress 
 
 of the commission. (2) 
 
 SECTiON II. 
 
 Of AjypUcations for a Supersedeas hy other Persons. 
 
 The commission may also be superseded (for any of the 
 
 causes specified in the previous section) upon the petition 
 
 of other parties, as well as on the petition of the bankrupt. 
 
 And if the petitioning creditor has not prosecuted the By peti- 
 
 commission so far as to give- an interest in it to others, he '^'°"j."S 
 
 ° ' creditor, 
 
 may apply, as a matter of course, to have it superseded, 
 
 unless the bankrupt should oppose it. (3) A petitioning 
 creditor, however, cannot supersede a commission without 
 first applying to the Court ; and where he did so in one 
 case, upon receiving his debt from the bankrupt, he was 
 ordered to refund the money which he had so received. (4) 
 A commission of bankrupt is, in fact, an execution for all 
 creditors -, and the petitioning creditor, therefore, cannot 
 receive his debt and supersede the commission, while the 
 other creditors are (5) unsatisfied. Where, too, a petition- 
 ing creditor applies to supersede a commission, which is 
 taken out with a different object from that which the law re- 
 cognizes as the proper object of a commission, — the Lord 
 Chancellor will supersede the commission, without prejudice 
 
 (1) Ex parte Smith, 1 G. & J. (4) Ex parte Thomson, 1 Ves. 
 256. 157. 
 
 (2) In re Lewis, 2 Rose, 59. (5) Ex parte Stokes, 7 Ves. 408. 
 
 (3) Ex parte Proii-se, iG.&J. 
 92. 
 
 3 G 2
 
 820 
 
 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Applica- 
 tions hy 
 creditors. 
 
 As to ser- 
 vice of 
 petition ; 
 
 by a gene- 
 ral credi- 
 tor. 
 
 to the bankrupt's right of action; but will not give any 
 direction for the petitioning creditor to issue another. ( I ) 
 Where two commissions issued against a man, the first 
 by a wrong name (though one he was in the habit of 
 using) — and the second by his right name, — upon an ap- 
 plication by the petitioning creditor under the second com- 
 mission, the first was ordered to be superseded ; for where 
 there is a commission against a bankrupt by his right name, 
 that ought to stand in preference to the other. (2) A peti- 
 tion by the petitioning creditor to supersede a commission 
 (before it has been opened) ought to be served upon the 
 bankrupt. (3) 
 
 So any other creditor of the bankrupt may, in an early 
 stage of the proceedings, and for good cause shown to the 
 Court, apply by petition for a supersedeas, notwithstanding 
 he has proved his debt under the commission (4<); for 
 any objection on account of the proof of the debt,Lord 
 Eldon said, must depend entirely upon the circumstances 
 under which the proof had been made, as well as the 
 conduct of the creditor — and that he would lay down 
 no general rule upon the subject. (5) The petition of 
 the creditor must contain an allegation, that the petitioner 
 is a creditor; or it will not be heard. (6") And where 
 the affidavit (in support of the petition) stating that the 
 petitioner is a creditor, is contradicted by the examination 
 of the bankrupt before the commissioners, — an inquiry 
 will be directed, as to whether the petitioner was a creditor, 
 so as to entitle him to petition. (7) It seems that a credi- 
 tor, who is proceeding against the bankrupt at law, must 
 consent to discontinue the action, if he applies to supersede 
 
 (1) Ex parte Smith, I Rose, 5.33. that a creditor, who haH not proved, 
 
 (2) Ex parte Schojleld, 2 Rose, cannot petition to snpersedc a 
 246. ; and see Stevens v. Elizffe, commission. Sed quJEre. 
 
 5 Camp. 256. 
 
 (3) Anon. 1 G. &J. 23. 
 
 (4) 2 Rose, 33. Ex parte Bon- 
 ier, ibid. 61. 
 
 (5) 2 Rose, 62. In 2 Mad. 281. 
 it is reported to have been held. 
 
 12. 
 
 (6) Ex parte Oxley, 1 G. & J. 
 
 (7) Ex parte Fowles, Buck, 98.; 
 and sec Ex parte Bold, 1 Cox, 
 423.
 
 Sect. 2.] OF SUPERSEDING A COMMISSION. 821 
 
 the commission ; for if he will not do so, he has nothing to AppUca- 
 
 do with the commission, nor any resource to the great creditors 
 
 seal. (1) Any tampering of a creditor with the bankrupt 
 
 will cause the Chancellor to dismiss the petition. But " ^^J"^ ° 
 
 any tam- 
 
 when a creditor, honestly believing a commission to be pering, 
 invalid, does not prove under it — but (acting adversely) P^*'*^'°" 
 declares to the bankrupt and his friends, that he means to dismissed, 
 petition for a supersedeas unless his debt is paid, — this is 
 not such a tampering, as will bar his petition for the super- 
 sedeas. (2) After the bankrupt, however, has obtained his 
 certificate, the commission will not be superseded, unless 
 a case of fraud is made out against him — or the invalidity 
 of the commission appears on the face of the proceedings. (3) 
 And if he has conducted himself honestly, the commission Commis- 
 
 will not be supersedable by the creditors after certificate — ?^°" ^°^ 
 
 11 11 • 1 • • 1 1- 1 • • 1" general 
 
 although there is an objection to the trading, the petition- supersed- 
 ing; creditor's debt, or the act of bankruptcy — and thouoh able by 
 
 , creditors 
 
 debtors to the estate upon that ground refuse to pay the ^^^^j. ^qj._ 
 
 assignees. (4-) If the Lord Chancellor makes any order tificate, 
 upon such a petition, it will be to direct an issue to try 
 the bankruptcy ; for after the bankrupt has got his certi- 
 ficate, a creditor can have no action at law against him — 
 as the certificate (unless it has been obtained by fraud, or is 
 void under the statute) is a conclusive bar against him — 
 that of itself being evidence of the trading, act of bank- 
 ruptcy, &c. And where a commission v.as proceeded 
 upon in the usual manner, and all the creditors had ac- 
 quiesced in it, and the whole was completely finished, — 
 Lord Hardwicke refused to supersede it on a petition of the 
 creditors — which suggested that an action had been brought 
 by the assignees to recover some part of the bankrupt's pro- 
 perty — and that, a witness having stated that an act of 
 bankruptcy was committed before the petitioning creditor's 
 
 (1) Ex parte Joseph, 1 Rose, 189. (5) Ex parte Levi, Buck, 75. 
 Ex parte Hardcnbergh, ibid. 206. (4) Ex parte Crowder, 2 Rose, 
 
 (2) Ex parte Paterson, 1 Rose, 524. ; and see Ex parte Moide, 
 402. 14Ves. 602. 
 
 3 & 3
 
 822 
 
 OF SUPERSEDING A COMMISSION. [CIl. 20. 
 
 Applica- 
 tions by 
 creditors. 
 
 except in 
 cases of 
 fraud. 
 
 Preference 
 of peti- 
 tioning 
 creditor. 
 
 Act of 
 bank- 
 ruptcy 
 concerted. 
 
 debt accrued, (which, under the former law, rendered a com- 
 mission invalid,) the assignees submitted to a nonsuit; — for 
 such submission of the assignees was held to be not a suffi- 
 cient determination of the bankruptcy; — and the act of bank- 
 ruptcy, also, (stated to be proved by the witness at the trial) 
 was considered in this case to be somewhat of a doubtful na- 
 ture. (1) But in all cases o^Jrmid^ the Court will never refuse 
 to supersede the commission, without regard to any lapse of 
 time even after the bankrupt has obtained his certificate. (2) 
 Two of the most usual grounds for the application on 
 the part of the creditors are, any preference shown by the 
 bankrupt to the petitioning creditor — or any concert with 
 him in the issuing of the commission. Thus, where the 
 petitioning creditor, though with the knowledge of two or 
 three other creditors, receives his debt from the bankrupt 
 after the issuing of the commission, — the commission will 
 be superseded, even on the petition of a creditor privy to the 
 transaction. (3) But it is doubtful, whether that creditor 
 would be permitted to sue out a fresh commission. (4) So, 
 where the commission is issued upon a concerted act of 
 bankruptcy — or it appears to be clearly the commission of 
 the bankrupt, and not of the creditor, and the bankrupt has 
 evidently the management and direction of it — or where 
 it has even been issued at the instance of the bankrupt, — 
 the Lord Chancellor has been accustomed to supersede it. (5) 
 Where concert is alleged, and the Court directs an issue 
 to try the fact, it will direct the parties to the alleged con- 
 cert to be examined at law. (6) But a trader may now, 
 as we have before seen (7), by making a private declaration 
 of his insolvency at the bankrupt office, commit a valid 
 
 (1) Ex parte Desanlhus, 1 Atk, 
 14.5.; but see Ex parte Bass, 4 Mad. 
 270. ante, 684. 
 
 (2) Ex parte Mo?</e, 14Ves. 602. 
 Ex parte Poole, 2 Cox, 227. Ex 
 parte Cutten, Buck, 68. 
 
 (3) Ex parte Brine, Buck, 19.; 
 and see ante, 807. 
 
 (4) Ex parte Smith, 1 Rose, 553, 
 
 (5) Ex parte StaJ^, Buck, 431. 
 Ex parte Prosser, ibid. 77. Ex 
 parte Grant, 1 G. & J. 17. Ex 
 parte Gouthwaite, 1 Rose, 87. Ex 
 parte Edmonson, 7 Ves. 503. Ex 
 parte Binncr, I Mad. 250., &c. 
 
 (6) Ex parte Carter, 1 G. & J. 
 526. 
 
 (7) Ante, 82.
 
 Sect. 2.] OF SUPERSEDING A COMMISSION. 825: 
 
 act of bankruptcy to support a commission against him ; AppUca- 
 and the 1th section expressly declares, that no commission creditors. 
 
 founded on this act of bankruptcy shall be deemed invalid, 
 
 by reason of such a declaration being concerted or agreed 
 upon between the bankrupt and any of his creditors. It 
 is not, therefore, very likely, that many commissions will 
 in future issue upon the old concerted acts of bankruptcy, 
 namely, the bankrupt agreeing with a creditor to deny 
 himseh^ or to absent himself from his dwelling-house, &c. 
 But if commissions do issue upon such concerted acts, it is 
 apprehended, that the courts will deal with them as they have 
 been hitherto accustomed to do ; and will, indeed, be rather 
 more disposed to view the case in a suspicious light, from 
 the very circumstance of the bankrupt not choosing to 
 avail himself of the mode (pointed out in the statute) for 
 committing an act of bankruptcy, when he wishes a com- 
 mission to issue against him. 
 
 Another cause, for superseding the commission at the Unreason- 
 instance of a creditor, is, where there has been an unrea- ^^. ".^''W 
 sonable delay in the prosecution of it by the petitioning tionino- 
 creditor — as where the adjudication is not made until nine creditor, 
 months after the commission issued — notwithstanding the 
 delay may be occasioned by the acts of tiie bankrupt, and 
 may also be with the concurrence of most of the creditors. 
 For the public, as well as the bankrupt and his creditors, are 
 interested in the due prosecution of a commission ; as, until 
 the bankruptcy is declared, the bankrupt is in the situation 
 of a person, with whom all the world ostensibly, and^yet 
 nobody in reality, can deal. (1) 
 
 The assignees may, also, apply to supersede a commission, As to ap- 
 even for defects appearing on the proceedings ; but such P ^^''".o"^ 
 an application will be watched with great jealousy; as nees. 
 it is their duty, in the first place, to do all in their power to 
 clear any doubts as to the validity of the commission. (2) 
 
 (l) Ex parte LuJue, 1 G. & J. (2) Ex parte Groves, 1 G. & J. 
 361. 86. 
 
 3 G 4
 
 824 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Applied- So much, indeed, is it considered incumbent on them 
 tionsby ^^ support the commission, under which they derive their 
 
 trust, that the Lord Chancellor will refuse to nidemnity 
 
 them against the consequences of a siqmsedeos, at whose- 
 soever instance the same may be issued, (l) 
 
 Section III. 
 0/ the Practice upon Petitions to supersede a Commission. 
 
 When no- "When the bankrupt applies to supersede a second com- 
 ditorrne-" mission — on the ground of a former one having issued 
 cessary. against him, under which he has not obtained his certifi- 
 cate — he should give notice to the creditors under the first 
 commission ; this is done, by serving a copy of the pe- 
 tition on the assignees under the first two days at least 
 Service of before the day of petitions. (2) And it is a general rule, 
 petition on ^j^^^ ^i^^^^ every petition for a supersedeas by a creditor 
 must be served upon the bankrupt, whether the commission 
 Affidavit has been opened or not. (3) An affidavit of service should 
 service. ^|^^ ^^ made and filed ; for the Court can act upon such an 
 affidavit in cases of supersedeas^ as well as in other cases. 
 When the "W'here the ground of the application is a legal objection to 
 to his the commission — if a great length of time (such as a year 
 
 action ; j^jj J r^ ij^jf for instance) has intervened between the issuing 
 of the commission and the application — the Lord Chancel- 
 lor will not grant an issue to try the bankruptcy, but leave 
 the party to bring his action. (4) If the bankrupt is out of 
 the kingdom, and there is a doubt of the bankruptcy, the 
 Court will not supersede the commission on petition, but 
 send it to trial : — if he is in England, and the question is 
 
 Cl) In re Bryant, 2 Rose, 17. (3) Ex parte 7?a?icr, Buck, 49,5. 
 
 (2) Ex parte Irvine, 1 Mad. l-X. Anon. 1 G. & J. 25. 
 Ex parte Rhodes, 15 Ves. 542. (4) Ex parte Nutt, 1 Atk. 102. 
 2 Rose, 451. Ex parte AbcU, 1 G. I'v J. 1 00. ; and 
 
 see ante, 806, 807.
 
 Sect. 3.] OF SUPERSEDING A COMMISSION. 
 
 82B 
 
 not involved in doubt, the Court will decide at once upon 
 the affidavits — ' or will sometimes send it back to the 
 commissioners to consider, if, on evidence taken before 
 them, they can declare the party a bankrupt or not. (1) 
 And, upon the hearing of all petitions to supersede a com- 
 mission, the proceedings under it ought to be produced for 
 the inspection of the Lord Chancellor (2); who, though there 
 are no affidavits on the other side in support of the commis- 
 sion, and no notice has been given that the proceedings will 
 be produced, will nevertheless look into them, to see whether 
 the depositions will support the commission. But though 
 the Court itself will look at the proceedings, it will not per- 
 mit the bankrupt to inspect them. (3) And yet (which is 
 somewhat inconsistent with this rule) the bankrupt, when 
 he applies for a supersedeas, is expected to give a jmrticular' 
 answer to the facts charged in the depositions taken before 
 the commissioners, as well as the affidavits on the other 
 
 Practice, 
 
 when the 
 matter 
 sent back 
 to commis- 
 sioners. 
 Proceed- 
 ings must 
 be pro- 
 duced. 
 
 Bankrupt 
 not per- 
 mitted to 
 inspect 
 them. 
 
 (1) Ex parte Gulston, I Atk. 193. 
 Ex parte Lord, 2 Ves. 26. 
 
 (2) Ex parte Dodson, 1 Mont. 
 B. L. 664. 
 
 (3) Ex parte Vi/pond, 1 Mad. 
 624. It is, certain!}', difficult to 
 comprehend the justice of this rule 
 of practice, which prevents the 
 bankrupt from inspecting the pro- 
 ceedings against him, for the pur- 
 pose of assisting him in applying 
 to supersede the commission. In 
 other cases, as it is justly observed 
 by Sir Wm. Evans, a party has an 
 opportunity of hearing and oppos- 
 ing the evidence, as well as of 
 examining the documents upon 
 which legal proceedings have been 
 instituted against him ; but here 
 the opportunity is withheld; and if 
 he wishes to arraign the regularity 
 of the procedure, he must take his 
 steps at random and in the dark. 
 There is no other instance, indeed, 
 in the whole compass of our juris- 
 prudence, in which a person is thus 
 affected in a judicial proceeding 
 by evidence, which he has not an 
 
 opportunity to know, to comment 
 upon, and to contradict. What- 
 ever convenience may be derived 
 from certain rules of practice in 
 point of arrangement, there are 
 nevertheless great and fundamental 
 principles of justice, to which all 
 matters of practical detail should 
 be considered as essentially subor- 
 dinate. When a party, therefore, 
 wishes to appeal from what has 
 been done, and to submit it to 
 the regular course of examination 
 and inquiry, there can be no motive 
 of convenience sufficient to coun- 
 tervail that essential principle of 
 justice, which requires that he 
 should be at least admitted to 
 know, to oppose, and to contro- 
 vert (if he is able) the allegations 
 of the opposite party and of wit- 
 nesses, which (being taken in his 
 absence) he had not at the time the 
 opportunity to contradict, or to 
 oppose — and upon which alone 
 he may possibly have been in- 
 volved in ruin.
 
 826 OF SUPERSEDING A COMMISSION. [CIl. 20. 
 
 Practice, side ; — for a mere general affidavit that he is not a bankrupt 
 
 has been held not sufficient to support the application. (1) 
 When the The Court will frequently, when the affidavits are con- 
 direct an tradicted and the evidence is conflicting, direct an issue to 
 issue. try the fact of the bankruptcy — the practice being to take 
 
 the assistance of a jury, when there is so much of doubt, 
 that such assistance is felt to be necessary to the right de- 
 termination of the case. But though the affidavits are 
 conflicting on both sides, yet the Court will not put the 
 parties to the expense of a trial, without first hearing all 
 the evidence read, and the case fully argued ; — unless the 
 counsel on both sides agree, that such must necessarily be 
 the result if the matter is gone into. (2) 
 When When an issue is directed upon the petition of the 
 
 ordered to bankrupt to supersede the commission, the Court will order 
 stand over, the petition to stand over until such a fixed time, as in all 
 probability the issue will be tried. (3) So, if it appear by 
 the statement in a petition, that an action at law is com- 
 menced to try the validity of the commission, the Court 
 will not supersede the commission, but defer the consider- 
 ation of the petition until the event of the trial is known. (4) 
 
 Affidavit And if from any circumstance the trial does not take place 
 
 accounting .... n ^ • i i i i i 
 
 for delay witnm the prehxed period, the bankrupt must make an 
 
 of trial. affidavit, satisfactorily accounting for the delay of the trial; 
 
 When a q^. }^ig petition will be dismissed. (5) If, on such a petition, 
 
 must be ^lo ^ct of bankruptcy appear on the proceedings, and the 
 
 delivered Court thinks fit to permit the assignees, or the petitioning 
 •of the act . C5 ' r o 
 
 of bank- creditor, to try whether or not there was any act of bank- 
 ruptcy, ruptcy in an issue or an action, — it will require, that they 
 deliver to the bankrupt previously to the trial a particular 
 of the specific act or acts of bankruptcy, on which they in- 
 
 (1) Ex parte Lingood, 1 Atk. (.3) Ex parte Rankcn, 3 Mad. 
 241. Ex parte Slokcs, 7 Vcs. 405. 571. Ex parte Bilbiald, Buck,220. 
 
 (2) Ex parte Heygate, Buck, (4) Ex parte Price, Buck, 230. 
 442. Ex parte Trustrum, Buck, 3 Mad. 228. 
 
 550. (5) Ex parte lianken, supra.
 
 Sect. 3.] OF SUPERSEDING A COMMISSION. 827 
 
 tend to rely. (1) And, upon such an order, the plaintiff Practice. 
 must in the notice not only specify the acts relied on — but 
 also the times when they were committed, and the 'witnesses 
 who will be called to prove them. (2) 
 
 When the Court directs the trial of an action at law, it When 
 is the intention to place the parties in such a situation, as ^''^ °^ ^^^' 
 though the action had originally commenced there (3) ; and cannot be 
 
 after an order has been made, that a petition shall stand over fi^e^l with- 
 
 ^^ i-i ^ . 1 • • o \ •^■^ c 1- oi't leave. 
 
 with liberty to bring an action, &c., a bill or discovery cannot 
 
 be filed by the bankrupt without leave of the great seal. (4) When 
 
 But where a material witness is abroad, and the court of law ^- „ ^„ " 
 
 puts off the trial on that ground, the Lord Chancellor will amine a 
 
 order, that the bankrupt shall be at liberty to file a bill for ^^"^"^^^ 
 ^ •' abroad. 
 
 a commission to examine the witness abroad. (5) When Whenpro- 
 an action is directed to be brought, all proceedings under ceedings 
 the commission are ordered to be suspended in the mean ^"^P^" ^ • 
 time ; but if the action establishes the bankruptcy, the 
 Court will not (without special ground) allow a longer 
 suspension; nor is it a sufficient ground, that justice was 
 not done to his case by his counsel in the first trial (6) — or 
 that the bankrupt is about to bring another action, and 
 therein to put his objections to the commission upon the 
 record, in order to carry it by writ of error to the House 
 of Lords. (7) And where the result of the action is to When no 
 establish the commission, the petition to supersede it will "q^„j°.* 
 be dismissed, without putting the assignees to the expense petition, 
 of a counter petition. (8) But if the bankrupt has a verdict When the 
 
 in such an action, the Lord Chancellor will not in that ^^'P^^'^^- 
 , , • 1 • 11 ^^«* will 
 
 case, unless under very special circumstances, delay super- 
 seding the commission until after another trial ; and it is 
 
 (1) Ex parte Sherivood, 2 Rose, (5) Ex parte Coles, Buck, 295. 
 162. ITVes. 416, 417. (6) 1 Ves. & B. 218, 219. 
 
 (2) Ex parte ^og-e«, Back, 157.; (7) Ex ^avte. Bryant, 2 Rose, 1. 
 and see the form ot" such a notice, 1 V. & B. 220. 
 
 as settled by Lord Eldon, ibid. 144. (8) Ex parte Cajwnliurst, Buck, 
 
 (3) Buck, 298. 476. 
 
 (4) Cooke V. Marsh, 18 Ves. 209.
 
 828 
 
 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Practice. 
 
 not be 
 delayed. 
 
 When new 
 trial of an 
 issue re- 
 fused. 
 
 When 
 parties 
 ordered to 
 be ex- 
 amined. 
 
 Applica- 
 tion for a 
 new trial. 
 
 not a sufficient ground, that the assignees have evidence to 
 support the commission, which they were prevented fi*om 
 producing by surprise; for, in such an action, assignees 
 must be presumed to know that the bankruptcy is disputed, 
 and ought to be provided with evidence to support it. (1) 
 So, where upon an issue to try whether a bankruptcy was 
 concerted or not, the jury found that it was, — the Lord 
 Chancellor refused to grant a new trial to prove other acts 
 of bankruptcy not concerted ; for the Court will never 
 support a commission, which is founded on a fraudulent and 
 illegal proceeding. (2) 
 
 In directing an issue, the Court will not, in general, 
 order the examination of persons at the trial, who (by the 
 rules of the courts of law) could not be examined without 
 such order — except sometimes in cases, where the facts in 
 dispute rest only on the knowledge of the plaintiff" and de- 
 fendant. (3) But where the case requires it, the Court 
 will direct the bankrupt to be examined. (4) And where 
 a petitioner swore positively to a debt, and was contradicted 
 by the bankrupt, and there was no other evidence, — in 
 this case, both the bankrupt and the petitioner were ordered 
 to be examined. (5) 
 
 With respect to the mode of applying for a new trial, 
 the practice differs, according as an issue, or an action, is 
 directed by the Chancellor : — in the former case, the mo- 
 tion must be made to the Court by which the issue was di- 
 rected — in the latter case, to the Court in which the action 
 is brought ; and the rule is not affected by any special provi- 
 sions of the Chancellor as to imposing terms &c., by which 
 the direction of the action is accompanied. (6) But a mo- 
 tion to put off the trial may be made in the court of law, as 
 well upon an issue, as in an action. (7) 
 
 ( 1 ) Ex parte Dick, 1 Rose, 5 1 . 
 
 (2) Ex parte Prosscr, Buck, 11. 
 
 (3) Ex parte Dister, Buck, 234. 
 C4) Ex parte S/aff, Buck, 431. 
 (5) Ex parte WUliamsun, Buck, 
 
 546.; and see Ex parte Carter, 
 1 G. & J. 326. 
 
 (6) Carstairs v. Stein, 2 Rose, 
 178. 4M.&S. 1!)2. 
 
 (7) Buxton V. Laivtmi, 4 Cani[). 
 163.
 
 Sect. 3.] OF SUPERSEDING A COMMISSION. 829 
 
 Where the assignee is not a creditor of the bankrupt, Practice. 
 
 and is alleged to be so much identified in interest with when ne- 
 
 him, that an action (brought by the bankrupt to try the titioning 
 
 validity of the commission) would not be properly tried if "^^ j''"^i 
 
 the assignee defended it, — the petitioning creditor has been defend, 
 directed to have the management of the tlefence, upon fully 
 indemnifying the assignee. (1) 
 
 Though a commission has not been opened, the Court Commis- 
 
 will sometimes interfere by motion (2), and it may be *'°" "°' 
 1 , . , , ,^ I ... -,- ^ siipersed- 
 
 superseded with the consent ol the petitionmg creditor (3); able before 
 
 but it cannot be superseded before it has been sealed, ^^ealing. 
 
 though the Chancellor will in a case of hardship give 
 
 directions that it shall not be sealed. (4) 
 
 A bankrupt, as well as any other suitor, whose circum- Bankrupt 
 stances require it, may petition m forma paiq^cris to super- ".^"^' P^*-^' 
 sede a commission. (5) forma 
 
 The Vice-Chancellor has authority to hear a petition to V"-upe^is. 
 
 supersede a commission (6), as well as a petition for a writ r^\^' i 
 
 ol 'procedendo to issue, where a commission has been super- lor's au- 
 
 seded by the Lord Chancellor's confirmation of his order *^"0'"''y as 
 
 to the su~ 
 for the supersedeas [7 ) ; and lie may also certify the pro- persedeas. 
 
 priety of awarding a procedendo, where a commission has 
 
 been superseded upon his certificate. (8) 
 
 Where sales of the estate have taken place under the When 
 
 commission, the Lord Chancellor has sometimes required '^^\*^'^ ^^"^^ 
 
 . , . taken 
 
 an affidavit from the bankrupt of his confirmation of all place. 
 
 purchases under it, before he would supersede it (9) ; and, 
 
 at other times, has refused to supersede it altogether (10), 
 
 even though it has been fraudulently issued (11); but the 
 
 (1) Ex parte Stewart, 2 Rose, 6. (7) Ex parte Hurd, Buck, 45. 
 
 (2) 1 Mont. Dig. 154. (8) Ex parte Crump, Buck, 3. 
 
 (3) Ex parte rV%i<;e//, 1 V. & B. (9) Ex parte Milner, 19 Ves. 
 548. " 204. 
 
 (4) Ex parte Williams, 2 Ves. & (10) Twogood v. Hankey, Back, 
 B. 253. 67. 
 
 (5) Ex parte Northam, 2 V. & B. (11) Ex parte Edwards, 10 Ves. 
 124. 2 Rose, 140. 104. 
 
 (6) 1 Mont. Dig. 141. 2 Rose, 
 255. note {a).
 
 830 «F SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Practice, provisions introduced into the new act for the protection of 
 purchasers (1) will, perhaps, in future prevent the neces- 
 sity of so much caution in this respect. 
 
 Section IV. 
 Of the Effect of the Suj)ersedeas. 
 
 Mere or- A commission is not actually superseded by merely ob- 
 nersecleas ' taining an order for a siipersedeas, it being necessary, that 
 iiiefFectual. the writ itself should be issued to supersede it effectually. 
 Therefore, where an order for superseding a commission 
 was obtained under the general order for want of prose- 
 cution, but the commission was opened, and the bankruptcy 
 adjudged before the writ of supersedeas was sealed, — the 
 commission was under these circumstances supported. (2) 
 Superse- And even the writ of supersedeas, though the Great Seal 
 
 deas in- j^^s been affixed to it, is inoperative while it remains in the 
 before de- hands of the Lord Chancellor ; but a delivery of it to the 
 livery to messenger, although it is not taken out of the Bankrupt 
 
 Office, is a delivery to the party. (3) 
 General By superseding a commission — every thing which had 
 
 ettect o a i^ggj^ done under it was considered (under the former law) 
 
 superse- _ _ _ ^ 
 
 deas under to become void, whilst the writ of supersedeas remained in 
 
 the former fQ^.^g — without any limitation as to the period of time, that 
 might intervene between the issuing of the commission and 
 of the supersedeas. Therefore, where a bankrupt (after his 
 creditors had released him, and given him his certificate) 
 petitioned to supersede a commission, and for liberty to 
 collect the debts still due to the estate, — Lord Llardwicke 
 said, that it was imprudently prayed to supersede the com- 
 mission, since that would entirely defeat the certificate; 
 and he therefore made a special order, enabling the bank- 
 
 {l) Sectio7i 87. E\ parte Hardi('icli,}h\d . Poynion 
 
 (2) Ex parte Leicester, 6 Ves. v. Foster, 5 Camp. 58. 
 429. Ex parte Layton, ibid. 434. (3) Ex parte Freeman, 1 Rose, 
 
 380.
 
 Sect. 4'.] OF SUPERSEDING A COMMISSION. 831 
 
 rapt merely to collect the debts. (1) And, indeecl, the same Of the 
 effect would be produced by a supersedeas, under the pro- ^jf^'^'' "•' 
 visions of the present statute. But the title also of pur- scdeas. 
 chasers under the commission was, before the late act, in 
 like manner entirely defeated by the suj^ersedeas {2), — the 
 effect of which was considered to divest the estates previously 
 conveyed to the assignees by the assignment and bargain 
 and sale; for which reason the Lord Chancellor, as has been 
 before observed, frequently refused to supersede a commis- 
 sion (and this even upon the consent of all the creditors) 
 where bond Jtde purchasers were in possession of any part 
 of the bankrii()t's property — unless the bankrupt chose to 
 confirm the purchases under which they claimed. (3) And 
 for the same reason, where a first commission was super- 
 seded in favour of a second commission, it was always the 
 practice of the Court to call upon the assignees under the 
 second commission to confirm any sale made by the former 
 assignees. (4) 
 
 This indiscriminate and general effect of the supersedeas No title 
 is restrained in some measure by the new statute. For P'i»nowbe 
 now (by section 87.) no title to any real or personal unless the 
 estate sold under any commission, or under any order bankrupt 
 in bankruptcy, can be impeached by the bankrupt, or \ sTnel-^^ 
 any person claiming under him, in respect of any de- sedeas 
 feet in the suing out of the commission, or in any of the |^L/" 
 proceedings under the same, — unless the bankrupt shall months. 
 have commenced proceedings to supersede the commission, 
 and duly prosecuted the same 'wil/iin Iwelve calendar montJis 
 from the issuing thereof. And by section 94., if the com- Indemnity 
 mission be superseded, all persons from whom the assignees ?f pei'sons, 
 u 1! I 7 I 1 ^ ^ -.1 1 ^^ conimis- 
 
 shall have recovered any real or personal estate, either by sion super- 
 judgment or decree, are discharged from all demands by seded. 
 the bankrupt — as well as all persons who shall without 
 
 (1) Ex parte Leaverland, 1 Atk. 10 Ves. 104. Twogood s.Hanhey, 
 145. Buck, 67. 
 
 (2) Exparte Jac/:*o«, 8Ves.5.53. (4) Ex parte Smith, Buck, 262. 
 (5) Ex parte Milner, 19 Ves. in note. 
 
 204, ; and see Ex parte Edwards,
 
 832 
 
 or SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Of the 
 effect of 
 the super- 
 sedeas. 
 
 After com- 
 mission is 
 superseded 
 creditor 
 may pro- 
 ceed with 
 his action. 
 
 Lord 
 Chancel- 
 lor's juris- 
 diction not 
 determin- 
 ed by the 
 superse- 
 deas. 
 
 action or suit bondjide deliver up possession of any real or 
 personal estate to the assignees, or pay any debt claimed by 
 them ; — provided no notice to try the validity of the com- 
 mission has been given by the bankrupt, and been proceeded 
 in, within the time and in manner required by the act. 
 
 Where a commission is superseded, after a creditor 
 (at whose suit the bankrupt is detained in custody) has 
 proved under the commission — in consequence of which the 
 bankrupt has been discharged, — the creditor, we have seen 
 in a former chapter (1), may proceed in the action as if he 
 had not proved his debt. Accordingly, where a bankrupt 
 was discharged from an execution, which was pending 
 against him at the time of the proof of the execution 
 creditor — and the commission was afterwards superseded, 
 on the ground of its being fraudulently issued to defeat the 
 plaintiff's claim, — it was held, that the bankrupt might be 
 retaken under the execution, (2) 
 
 The jurisdiction of the Lord Chancellor, it has been also 
 observed (3), is not determined by the superseding of the 
 commission, as far as respects all acts which have been done 
 under it before it was superseded. (4) The Lord Chancellor 
 has, therefore, even after the supersedeas a discretionary power 
 still to grant relief to any person, who has been injured by 
 the operation of the commission during the period of its 
 existence. Lideed, from the tenor of the writ of siipersedeas^ 
 it would seem, that its effect was in reality ^not absolutely to 
 vacate the commission, but merely to render it dormant (5) ; 
 for it commands the commissioners only " to stay and sur- 
 cease all further joroceedings upon the commission," — without 
 directing the commission itself to be quashed or cancelled. 
 
 (1) Chap. IX. Sect. 2. 
 
 (2) Baker v. Ridgway, 2 Bing. 
 42. This could not formerly be 
 done. See ante, 184, note (2). 
 Jaquesy. Withy, 1 T.R. 557. Tur- 
 ner V. Hayne, 7 T. R. 420. Vigers 
 V. Aldric/c, 4 Burr. 2482. Black- 
 burn V. Stupart, 2 East, 24.5. 
 
 (5) Ante, 13. 
 
 (4) Ex parte Bernal, 1 1 Ves. 558. 
 Ex parte Warren, 1 Rose, 276. 
 19 Ves. 162. Ex parte Feetor, 
 Buck, 428. Ex parte Cowan, 3 B. 
 &A. 125. 
 
 (5) Buck, 200. note (a); and see 
 post, " Procedendo," and Vol. ii.
 
 Sect. 5.] OF SUPERSEDING A COMMISSION. 833 
 
 Where a commission has been superseded on the ground Of the 
 
 of there not being a vahd petitioning creditor's debt, and a thTsuper- 
 
 fresh commission has been issued, and the same assignees sedeas. 
 
 chosen, — it has been determined, that they cannot en- \vh^j!^ 
 
 force the performance of a contract of sale of property contract of 
 
 made by them under the first commission ; for, not beinff a """^'' 
 •' .... anrstcom- 
 
 then able to prove a good petitioning creditor's debt, they mission 
 
 could not at the period of the contract make out a valid '^^""^'^ ^e 
 . , , ^ . entorced. 
 
 title. (1) 
 
 Section V. 
 
 Of the Writ of Procedendo. 
 
 The writ of procede7ido issues under the Great Seal, 
 upon the special order of the Lord Chancellor; and 
 it is granted for the purpose of ordering the commission 
 to be proceeded in, when it has been suspended by a writ 
 o^ supersedeas issued without sufficient cause. It operates Operation 
 in the same way with respect to commissioners of bankrupt, ^"'^ effect, 
 as it does with respect to commissioners of oijer and 
 terminer^ and justices of the peace; — whose authority, when 
 suspended by writ of supersedeasy may be restored by the 
 writ o^ procedendo. 12) This latter writ recites the previous 
 writ of supersedeas^ which (as has been already observed) 
 does not, in strictness, render the commission absolutely 
 void, but merely suspends its operation ; though (whilst it 
 does continue in force) it is held to avoid all acts that have 
 been previously done under the commission, — a conse- 
 quence, however, that seems to be scarcely warranted from 
 the language of the writ. (S) The procedendo directs the 
 commissioners to proceed upon the commission, and to 
 put the same in execution, as if the same had not been 
 superseded. The effect of the writ is, therefore, to place 
 
 (!) Bartlettv. Tuchin, 1 Marsh, (2) Regist. 124. )2 Ass. 21. H. 
 583. 2Rose,43G. P. C. 162. 1 BI. Com. 353. 
 
 ^3) See ante, 832. 
 
 3 H
 
 834 
 
 OF SUPERSEDING A COMMISSION. [Ch. 20. 
 
 Of the 
 2)roce- 
 dendo. 
 
 In what 
 
 cases 
 granted. 
 
 As to Vice- 
 Chancel- 
 lor's au- 
 thority. 
 
 every thing in the same situation as if the supersedeas had 
 not issued. But there is so much caution now observed 
 by the Court in issuing the suposedcas, that it is seldom 
 necessary in practice to appl}' for a writ of j^rocedendo. In 
 two modern cases, where it appears to have been granted — 
 the petitioning creditor was, in one, prevented from prose- 
 cuting the commission by the artifices of two persons, 
 whose object was to delay the prosecution of the com- 
 mission until after two months had expired, so as to give 
 effect to certain transactions between them and the bank- 
 rupt, which the commission (if not superseded) would have 
 overreached ; — and Lord Eldon, under these circum- 
 stances, directed the writ of supersedeas to be quashed, 
 and a procedendo to issue. (1) In the other case, where 
 the witness to prove the act of bankruptcy was kept out 
 of the way by the bankrupt and his wife, for the purpose 
 of avoiding the service of the summons to attend the com- 
 missioners, and the petitioning creditor was by that means 
 prevented from prosecuting the commission to adjudi- 
 cation, — a writ of procedendo was directed by the Lord 
 Chancellor to issue, after the commission had been super- 
 seded (upon the petition of the bankrupt) for want of pro- 
 secution (2) under the general order. 
 
 A petition for a writ of procedendo cannot, strictly, be 
 heard before the Vice-Chancellor, unless the Lord Chan- 
 cellor directs it to be heard before him. (3) But in a case, 
 where a commission was superseded upon the certificate of 
 the Vice-Chancellor, Sir Thomas Plumer thought that he 
 might, of his own authority, hear a petition for a writ of 
 procedendo to issue, and certify the propriety of awarding 
 such writ. (4) 
 
 ( 1 ) Ex parte Knight, 2 Rose, 3 1 9. 
 
 (2) Ex parte Bowler, Buck, 258. 
 
 (.5) Ex parte Hurd, Buck, 45. 
 (4) Ex parte Crump, Buck, 3.
 
 835 
 
 CHAP. XXI. 
 
 OF THE PRACTICE OF THE COURT ON PETITION IN BANK- 
 RUPTCY. 
 
 1 HE innumerable applications now made to the Chan- 
 cellor sitting in bankruptcy by the different parties interested 
 in the administration of a bankrupt's effects, have rendered 
 it highly essential, that certain rules of practice should be 
 adopted by the Court, and strictly acted upon, in order for 
 the due dispatch of the multiplicity of bankrupt business, 
 consuming so large a portion of the time of the Lord 
 Chancellor. Accordingly, during the long period that 
 Lord Eldon has held the Seals, many beneficial regulations 
 have been made with regard to the practice of the Court 
 in various matters of bankruptcy — all of which are left 
 untouched by the recent statute; the 135th section ex- 
 pressly providing, that nothing therein contained shall alter 
 the present practice in Bankruptcy, except where any alter- 
 ation is expressly declared. 
 
 The jurisdictio7i upon petition in Bankruptcy having 
 been already fully considered in discussing the jurisdiction 
 of the Lord Chancellor (1), it is the purpose -of the present 
 chapter to treat only of such matters, as relate to the general 
 jyractice of the Court upon petition — and which have not 
 been touched upon in the previous examination of par- 
 ticular proceedings. With respect, however, to petitions 
 for payment of dividends (2), for staying the certificate (3), 
 and for a supersedeas (4), the reader is referred to the 
 former parts of this work, where the practice under each 
 of these heads has been fully stated. 
 
 (1) Ante, Chap. I. , (3) Ante, 597. 
 
 (2) Ante, 505. (4) Ante, 824. 
 
 3 H 2
 
 836 
 
 PRACTICE ON PETITION. 
 
 [Ch.21. 
 
 When ap- 
 plication 
 
 by petitio?i, 
 and wlien 
 by motion. 
 
 When pe- 
 tition will 
 not lie. 
 May be in 
 the alter- 
 native. 
 
 Title. 
 
 Petition 
 should not 
 be multi- 
 farious. 
 
 The proper and usual course of making any application 
 to the Lord Chancellor in Bankruptcy is hy petition — except, 
 indeed, in cases of contempt, where the application may be 
 bj motion (1) — and in cases, also, of applying for a habeas 
 corpus, when the proceedings otight to be by motion{2), though 
 the writ has been granted in some few instances on petition. (3) 
 An application by motion, also, has been sometimes enter- 
 tained before the commission has been opened (4?) — or for the 
 amendment of the minutes of an order (5) — or for a special 
 order as to service. (6) It is a general rule, that a petition 
 should not be presented, where relief is provided for by a 
 general order — otherwise it will be dismissed with costs. (7) 
 
 A petition may be framed in the alternative; and the 
 respondent cannot call upon the petitioner to elect to pro- 
 ceed for only one of the objects of the petition, unless 
 under special circumstances. (8) 
 
 A petition should be properly entitled in the bankruptcy, 
 or it cannot be heard ; for if it is headed " in Chancery^^ 
 no order in bankruptcy can be made upon it. (9) And 
 where a petition by assignees under a joint commission to 
 supersede a separate commission, (which had been issued 
 against one of the bankrupts,) was entitled in \he joint com- 
 mission only, it was held bad ; but the Court, in such a 
 case, will allow the petition to stand over for the purpose 
 of amending the title. (10) 
 
 No statements should be made in a petition, which are 
 inconsistent with the legitimate object of the relief it prays. 
 For though an order might be made upon one part of it, 
 yet where there is much groundless imputation against 
 
 (1) Ex parte Morgan, 1 Rose, 
 192. Anon. 1 Rose, 250. 
 
 (2) 7 Ves. 425. Taylor^ case, 
 8 Ves. 328. Ex parte Tomkinson, 
 10 Ves. 106. Ex parte Hiams, 
 18 Ves. 237. 
 
 (3) Ex parte James, 1 P. Wms. 
 610. Ex parte Lingood, 1 Atk. 
 240. 1 Svvanst. ,■>!. 
 
 (4) ] Mont. Dig,' 154. 
 
 (5) Ibid. 
 
 (6) Ex parte Anderson, Buck, 58. 
 Ex parte Peyton, ibid. 200. 
 
 (7) Ex parte Watts, 1 Rose, 456. 
 
 (8) Ex parte Scho/cy, Buck, 476. 
 
 (9) Ex parte Glandjicid, 1 G.& 
 J. 387. 
 
 \,\0) Ex parte ilfzV/s, Buck, 230.; 
 and see Ex parte L'cddam, 1 Rose, 
 310. Ex parte lieiv, 1 Mad. 509. 
 Ex parte Byron, 2 Rose, 368.
 
 Ch. 2I.J PRACnCE ON PETITION. 8^7 
 
 a party, the whole will be dismissed with costs. (1) But 
 when a petition contained only two points, Lord Eidon 
 did not think that he was prevented from making an 
 order as to one, because he could not make an order as 
 to the other. (2) Where the prayer of a petition was to 
 expunge a charge of collusion made in another petition, 
 and to be heard before that petition came on, — the last 
 petition was dismissed with costs ; for the Lord Chancellor 
 said, that he could not possibly decide whether there was 
 any foundation for the charge or not (3), without previously 
 hearing the matter complained of in the first petition. 
 A petition, also, to expunge the proofs that had been 
 made by various creditors upon certain bills of exchange, 
 was dismissed, on the ground of being multifarious. But 
 the Vice-Chancellor refused to give costs to the creditors 
 who opposed this petition : as that, he said, would be to 
 make those creditors, whose debts were beyond dispute, 
 contribute to the defence of doubtful debts. (4) 
 
 A creditor cannot present a petition to prove, until the Petition to 
 commissioners have rejected his proof; and the petition P^'o^^- 
 must, also, state the grounds of their rejection of it. (5) 
 Therefore, where a creditor, after attempting to prove 
 5,000/. before the commissioners, petitioned to prove 
 10,000/., — the petition was dismissed. (6) 
 
 By a general order of Lord Eldon's (7), all petitions in General 
 Bankruptcy presented for hearing must, before they are "'""^''^sto 
 
 petition. 
 
 signature, 
 presented, be respectively signed by the petitioners, except and attest 
 
 in case of partnership, or absence from the kingdom ; in ^^'°" 
 
 the former of which cases, the signature of one pf the 
 
 parties will be deemed sufficient; and in the latter case, 
 
 the petition must be signed by the person presenting it on 
 
 behalf of the person abroad. The signature, also, of each 
 
 (1) Ex parte Vernon, 15 Ves. Ex parte Wright, sVes. jun. 41. 
 270. Ex parte De Tastet, 1 V. & B. 280. 
 
 (2) Ex parte Ross, 1 Rose, .37. Ex parte Curtis, 1 Rose, 274. Ex 
 (.3) Ex parte Leigh, Buck, 132. parte Schmaling, Buck. 93. 
 
 (4) Ex parte Coles, Buck, 256. (6) Ex parte Fry, 5 Mad. 1 j2. 
 
 (5) Ex parte Wilso7i, 1 Cox, 308. (?) 12th August, 1.S09. 
 
 3 H 3
 
 838 
 
 PRACTICE ON PETITION. 
 
 [Ch.2i. 
 
 When 
 party per- 
 mitted to 
 sign by his 
 agent. 
 
 Assignees 
 must all 
 sign. 
 Aliter 
 partners. 
 
 Attest- 
 ation. 
 
 person signing as a petitioner, must be attested by the soli- 
 citor actually presenting the petition — or by some person 
 who must state himself in liis attestation to be attorney, 
 solicitor, or agent of the party signing, in the matter of the 
 petition. 
 
 This order will not be dispensed with, except under very 
 special circumstances verified by affidavit. (1) But in one 
 case, where the petitioners lived at York, and their signa- 
 tures could not be obtained before the petition day, the 
 Lord Chancellor permitted the agents in town to sign it 
 for them, the agents undertaking to be answerable for 
 costs. (2) 
 
 When a petition is presented by assignees, it must be 
 signed by all who present it, and not by one only as in the 
 case of partners; and a partner signing in the partner- 
 ship name, instead of individually for himself and partners, 
 has been held insufficient. (3) 
 
 With respect to the attestation of the signatures of pe- 
 titions, a subsequent general order (4<) has directed, that 
 the attestation shall be strictly according to the directions 
 of the order above mentioned. It has been held, however, 
 that if it appear in any part of the petition, or by the in- 
 dorsement on it, that the solicitor attesting it was the 
 solicitor actually presenting it, such attestation is suffi- 
 cient ; and that the solicitor need not state himself in his 
 attestation to be solicitor in the matter of the petition. (5) 
 But, if the person attesting the signatui'e of the petitioner 
 is 7iot the solicitor actually presenting the petition, he must 
 then, pursuant to the directions of the above order, state 
 himself in his attestation to be the attorney, solicitor, or 
 agent of the party signing in the matter of the petition. (6) 
 And where there were two petitioners, and the attestation 
 
 (1) Anon. 1 Rose, 99. (5) Ex parte Champncys, 1 G. & 
 
 (2) In re Boldero, 1 Rose, 231. J. 354. (note). 
 
 Ex parte .S^one, Buck, 255. (6) Ex parte Wilkinson, 1 G. & 
 
 (3) Ex parte Morgan, Buck, J. o5o. Ex parte Cox. Ex parte 
 109. Thomason. Ex parte 'iV/owrw, ibid. 
 
 (4) 6th February, 1816. 355. note («).
 
 Ch.21.] PRACTICE ON PETITION. 839 
 
 was, " Witness to the signature, J. Mortlock, Solicitor," who ^''/c.j^ 
 was not the solicitor presenting the petition, — the Vice- '^J^^^2_ 
 
 Chancellor held the attestation in every way insufficient ; 
 as it did not even state him to be solicitor for the pe- 
 titioners, nor specify whether he was witness to the signa- 
 ture of both, or of which of the two petitioners. ( 1 ) 
 
 An attestation by the agent to the petitioner's solicitor is Attest- 
 not in conformity with the terms of the order, which re- ^",?" ^^, 
 '' , . . solicitors 
 
 quu'es the attestation to be by the petitioner''^ solicitor or agent in- 
 
 agent(2) — though, in one case, where the petition was at- sufficient, 
 tested b}' the agent of the solicitor, and, afterwards, au- 
 thenticated by the solicitor, it seems that such attestation 
 was held sufficient. (3) And where the solicitor had not Qusere, 
 actually witnessed the signature of the petitioner, which whether 
 purported to be " cmthcnticatc(r\ not " attested", by the t'wn suffi- 
 solicitor — who put his name to it from a knowledge of the cient. 
 petitioner's hand-writing — the Lord Chancellor thought, 
 in this case, that the spirit of the order had been complied 
 with ; as its object was to have the pledge and responsibility 
 of a solicitor of the court to the propriety of the appli- 
 cation. (4) But in a similar case before the Vice-Chan- 
 cellor, he thought that authentication was not equivalent to 
 attestation ,- and that the intention of Lord Eldon, in the 
 last case, was to relieve against the mistake in that par- 
 ticular instance, and not to establish a general rule by his 
 decision. (5) 
 
 Where the solicitor attesting the petition was at the Soh'citor 
 
 time in prison, it was held not an objection to the validity '" P'j'son 
 f ' _ '' , ''no objec- 
 
 of the petition within the 12 Geo. 2. c. 13. s. 2., which makes tion to at- 
 
 void any process (sued out by a solicitor in prison) in any ^'^station. 
 
 court of law or equity ; for so highly penal a clause, it was 
 
 considered, should be construed strictly; and a petition in 
 
 bankruptcy is not, strictly speaking, a proceeding either in 
 
 (1) 1 G.& J. 555. note (a). (4) Ex parte Titlej/, 2 Rose, 85. 
 
 (2) Ex parte Hirst, I G. & J. 76. (5) Ex parte Biiri/, Buck, 393, 
 
 (3) Ex [YdneBe/tott, 2 Mild. 250. 
 
 3 H 4
 
 840 PRACTICE ON PETITION. [Ch. 21. 
 
 Attest- law or equity, (1) A mere omission as to the description of 
 
 "^'""' the solicitor in the attestation of the petition, may (as well 
 
 When at- as a mistake in the title) be amended upon an application 
 
 mf ^be" ^° ^^^^ indulgence of the Court for that purpose, the petitioner 
 
 amended, undertaking to pay the costs of the day; but if the mistake 
 
 is incapable of being rectified, the petition will be dis- 
 
 Whenat- missed with costs. (2) When a solicitor presents a petition 
 
 testation j^^ j^jg ^^^^ behalf, attestation is in that case dispensed 
 
 dispensed 
 
 with. with. (3) 
 
 Applica- When an application is made that a petition may stand 
 
 tion for over, the strict mode of proceeding is by petition presented 
 petition to ^ ' , - X 1 T^i 1 -11 
 
 standover. for that purpose, — though Lord JLldon said, he never 
 
 knew the application by motion objected to. (-i) But no 
 application to hear a petition out of its turn can be enter- 
 tained, unless notice of the intention to make such ap- 
 plication has been given to the other side. (5) And a 
 petition will not be permitted to stand over, for the purpose 
 of replying to affidavits, unless the application be made at 
 least two days before the petition appears in the paper. (6) 
 Service of Petitions in matters of bankruptcy should be, in ge- 
 petition. neral, personally served upon the other party interested in 
 the matter of the petition, by delivering a copy of it to 
 him at least two days before the day of petitions. (7) But 
 when the party is abroad, or wilfully keeps out of the way, 
 a special order as to the service may be obtained by an 
 application to the Court for that purpose, v»'hich, it seems, 
 may either be by petition or on motion. (8) Thus, a peti- 
 tion to expunge a debt may, when the creditor is abroad, 
 be served (with leave of the Court) upon the attorney, who 
 is appointed to receive the dividends upon the proof. (9) 
 And, under certain circumstances, where a party to be 
 affected by a petition is out of the kingdom, the Court will 
 
 (1) Ex parte Thompson, 1 G. & (5) In re Bell, 1 G. & J. 182. 
 
 J. 308, (6) Ex parte Wiltshire, Buck, 
 
 (2) Ex parte RawUnson, 1 G.& 252. 
 
 J. 19. Ex parte Biiry,su\)n\. (7) 1 Mad. 74.595. 15 Ves. 542. 
 
 (3) Ex parte Kiiigdon, 1 Mad. (8) Buck. 38. ibid. 200. 
 
 446. (9) Ex parte Peyton, Buck, 200. 
 
 (4) Ex parte Git ton. Buck, 549.
 
 Ch. 21.] PRACTICE ON PETITION. ^MS 
 
 order, that service at his last place of abode in England 
 shall be good service. ( 1 ) 
 
 If a party (after presenting a petition) becomes a bank- Where a 
 rupt before the petition is heard, his assignee must present P^*^*'^'°"^'' 
 a supplemental petition, in order to have the benefit of that bankrupt, 
 already presented ; — otherwise it v^^ill be dismissed. (2) 
 
 A party may be permitted to petition in forma pauperis^ Petition in 
 
 upon the usual certificate of counsel, that he had iust formapau- 
 
 . pcris. 
 
 cause to be relieved, and on making affidavit that he is not 
 
 worth 5/. (3) 
 
 By a general order (4), no petition struck out of the As to re- 
 Vice Chancellor's paper (on account of non-attendance) ^'^°"?g 
 can be restored to that paper, without an order being struck out 
 
 made by the Vice Chancellor: nor can it be placed in the ^'^ ^^ 
 •^ ^ paper. 
 
 Lord Chancellor's paper, except by order made upon 
 petition. 
 
 Before the hearing of any petition in bankruptcy, an Affidavits; 
 affidavit of the service of it, and of the truth of its contents, 
 must be filed with the secretary of bankrupts (5) before 
 it can be read ; and an office copy of each affidavit must 
 be produced when the petition comes on to be heard; for 
 that is the only evidence which the Court will admit of the 
 affidavit having been filed. (6) ^yjiling an affidavit (as has 
 been before observed) is meant, the swearing and carrying it 
 into the office. (7) But it is a general rule in Bankruptcy, 
 that an affidavit in support of a petition, which is s-joo7-n bc" 
 fore the petition is answered, cannot be read ; as there is no 
 proceeding in court to which it can attach. (8) The only ex- 
 ception to this practice is, as we have seen (9), in petitions to 
 stay certificates. But filing an affidavit, in answer to the 
 affidavit in support of the petition, has been held to be a 
 
 (1) Ex parte Bonbomus, 3 Mad. (4} June 11th 1817. 
 
 23. ; and see Ex parte Anderson, (5) Ex parte North, 1 Mad. 395. 
 
 Buck, 28. (6) Ex parte North, Buck, 396. 
 
 (2) Ex parte Birdwood, Buck, (7) ExparteiV(?it>/o?i, 2 Mad. 19. 
 99. (8) Ex parte Northwood, 2R0&C, 
 
 (3) Ex parte Northnm, 2 V. & B. 246, 
 
 124. 2Rose, 140. (9) Ante, 591.
 
 842 
 
 PRACTICE ON PETITION. 
 
 [Ch.21. 
 
 Affidavits. 
 
 before 
 whom 
 should be 
 sworn ; 
 
 should be 
 pertinent 
 to matter 
 of petition. 
 
 Amend- 
 ment. 
 
 Affidavits 
 in reply. 
 
 waiver of the objection that the first was prematurely 
 sworn (1) — that is, provided the respondent had notice of 
 the irregularity (2) ; though a party is not precluded, by 
 filing affidavits as to the merits, from objecting to the 
 jurisdiction. (3) Affidavits in support of petitions may be 
 likewise objected to, if filed subsequently to the petition 
 day (4) ; though in one case they were specially permitted 
 to be filed after the petition day, the petition standing over 
 to give time for answering them, and the petitioner paying 
 the costs of the day. (5) But an affidavit in support of a 
 motion may be filed at any time. (6) 
 
 No affidavit should be sworn before a master extra- 
 ordinary who is solicitor to the commission (7)) or who is 
 the clerk to such solicitor (8) ; for, if it be, it cannot be 
 read. But if the agent in town is the solicitor to the com- 
 mission, it would be then no objection to the affidavit, 
 that it was sworn before the party's own solicitor in the 
 country. (9) 
 
 An affidavit, as well as the petition (10), should be pertinent 
 to the matter of the petition ; for if it contains irrelevant or 
 scandalous allegations, it will be ordered to be taken off the 
 file — with costs against the party making it, as between 
 attorney and client. (11) 
 
 A defect in any affidavit in support of a petition may 
 be, in general, amended, by applying to the Court for 
 liberty to reswear it, and to permit the petition in the 
 mean time to stand over. (12) 
 
 Affidavits in rc})]!/ cannot be filed, except as to new 
 matter contained in those filed, in answer to the petition ; 
 
 (1) Ex parte Gilpin, iG. &J. 
 18.5. 
 
 (2) Ex parte Bury, Buck, 393. 
 Ex parte Peel, ibid. 394. Ex 
 parte Smith, ibid. 395. 
 
 (3) Ex parte Allison, 1 G. & J. 
 210. 
 
 (4) 2Rose, 161. Buck, 549. 
 
 (5) Ex |)arte Sparrow, '2 Mad. 
 184. 
 
 (6) Ex parte Giiton, Buck, 549. 
 (7 j Ex parte Brockhurst, 1 Rose, 
 145. 
 
 (8) Ex parte Green, 1 G. & J. 
 16. 
 
 (9) Read v. Cooper, 5 Taunt. 89. 
 
 (10) Ante, 837. 
 
 (11) Ex parte Simpson, 15Ves. 
 47G. Anon. 3 V. & B. 93. 
 
 (12) 1 Rose, 145. iG.&J. 16.
 
 Ch. 21.] PRACTICE ON PETITION. 843 
 
 and, in that case, the Court will permit a petition to stand Affidavits. 
 over, to enable the party to reply to such new matter (I) — 
 provided the application is made two days before the 
 petition appears in the paper. (2) And, where the re- 
 spondents were too late in filing their affidavits in answer 
 to the petition, the Vice-Chancellor, upon the application 
 of the petitioner, allowed the petition to stand over, to 
 give the petitioner an opportunity of considering the affi- 
 davits, and of replying to them if necessary; and as the 
 delay was occasioned by the conduct of the respondents, he 
 ordered them to pay the costs of the day. (3) 
 
 When a matter in bankruptcy is referred to a Master, When re- 
 and he finds it necessary to examine witnesses, a certificate ft'^^'jyf ,° 
 should be procured from him of the necessity of such ex- ter, afRda- 
 
 amination, upon which the Court will make the usual ^its maybe 
 
 • 1 • 1 • t 1 received, 
 
 order. (4) But any affidavits, which might have been read 
 
 at the hearing of the petition in court, may be received in 
 
 evidence by the Master. (5) Upon a petition for leave to 
 
 except to the Master's report of costs, the petitioner must 
 
 pay the taxed costs into court. (6) 
 
 At the hearing of every petition, the proceedings under 
 the commission should be in court ; as it is often necessary 
 that they should be inspected l:)y the Lord Chancellor, 
 before he makes an order upon the matter of the petition. 
 But the examination of the bankrupt before the com- 
 missioners cannot be read upon the hearing, unless notice 
 has been given of an intention to make use of it. (7) 
 
 The practice of the Court in directing an issue, or an 
 action at laic, upon the hearing of a general petition in 
 bankruptcy, is the same as upon a petition for a super- 
 sedeas, — for which the reader is referred to the preceding 
 chapter. (8) 
 
 (1 ) Ex parte Shayle, Buck, 244, (5) Ex parte JacJcson. Ex parte 
 
 (2) Ex parte Wiltshire, \h\A. 232. Heywood, 1 Rose, 45. 
 
 (5) Ex parte Doncastcr, Buck, (6) Ex parte Leigh, 4 Mad. 594. 
 40.3. Ex parte Trewiz-aw, ibid. 464. (7j Ex parte 67/-«c<?i/, 1 Rosej68. 
 (4) Anon. 4 Mad. 579. (8) Ante, 826.
 
 844 
 
 PRACTICE ON PETITION. 
 
 [Ch.21. 
 
 Affidavits. 
 
 When pe- 
 titioner 
 does not 
 appear. 
 
 Service of 
 order in 
 bank- 
 ruptcy. 
 
 When de- 
 fault made 
 inpayment 
 of money 
 under an 
 order. 
 
 Petition 
 for re- 
 hearintr 
 
 If, upon the day appointed for the hearing, the petitioner 
 does not appear when the petition is called on, the re- 
 spondent must in that case produce an office copy of the 
 affidavit of service before the rising of the Court, in order 
 to be entitled to costs. (1) 
 
 An order made upon the hearing of any petition in 
 bankruptcy must, like the petition itself, be personally 
 served upon the party on whom the order is made. But 
 where a party keeps out of the way to avoid the service, 
 the Court, upon affidavit of the fact, will in that case direct, 
 that service of the order at the house or office of the party 
 shall be deemed good service. (2) 
 
 When under an order in bankruptcy mcmey is directed 
 to be paid, the next order is to pay within four days, or 
 stand committed. (3) The practice in Bankruptcy differs 
 in this respect from the practice in Chancery, where an 
 intermediate order 7zisi is necessary before the final order. 
 
 Upon a petition for rehearing, the order may be ob- 
 tained upon an ex jjarte application; and it is not necessary 
 to give notice to the other side. (4) And, upon any appeal 
 to the Lord Chancellor from an order of the Vice-Chan- 
 cellor, the petition requires the signature of Counsel. (5) 
 
 (1) Ex parte Asfell, Buck, .596. 
 
 (2) Ex parte Anderson, Buck, 
 58. ; and see Ex parte Bowle7;\b'id. 
 258. 
 
 (3) Ex parte Davison, 1 G. & J. 
 227. 
 
 (4) Ex parte Hcnsor, Buck, 4 27. 
 
 (5) Ex parte Holt, Buck, 429.
 
 846 
 
 CHAP: XXII. 
 
 OF COSTS. 
 
 Sect. 1. Of the Costs of issuing a Commission up to the 
 Choice of Assignees. 
 
 2. Of subsequent Costs. 
 
 3. Of Costs upoji Petition. 
 
 4. Of Costs in Actions and Suits by and against 
 
 Assignees, and other Parties concerned in the 
 Coinmission. 
 
 5. When Security for Costs ivill be required. 
 
 For the Proofs of Costs under the commission, see ante, 
 Chap. IX. Section 19. 
 
 Section I. 
 Of the Costs of issuing the Commission, 
 
 1 HE petitioning creditor must prosecute the commission Petition- 
 at his own costs until the choice of assignees (1); when t"f jjabie 
 the commissioners are directed by the statute to ascertain in the first^ 
 such costs, and order the assignees to reimburse him out i"^^^"'^^* 
 of the first money that is got in under the commission. 
 The bill of these costs, when taxed and allowed by the 
 commissioners, should be filed and kept with the pro- 
 ceedings. If any party is dissatisfied with the taxation When re- 
 
 of them by the commissioners — and indeed this was the ^ a?^.*'* 
 ^ . . the Master 
 
 practice before the recent statute (2) — he may petition the to tax. 
 Lord Chancellor to refer it to a Master to review their 
 
 (1) 6 G.4. c. 16. s. 14. 11. Ex parte Clarke, ibid. Ex 
 
 (2) Ex parte Vincent, 1 C. B.L, parte ThelwaU, 1 Rose, 397.
 
 846 
 
 OF COSTS. 
 
 [Ch. 22. 
 
 Of issuing 
 the cow- 
 
 Petition- 
 ing credi- 
 tor's right 
 to reim- 
 bursement, 
 
 Petition- 
 ing credi- 
 tor liable, 
 though no 
 assets. 
 
 taxation ; but such an application is not a matter of course, 
 without stating particular objections to the taxation of the 
 commissioners ; though it may be so in an ordinary case, 
 when the bill has not been previously taxed. (1) If the 
 solicitor, however, refuses a copy of his bill, that is a suf- 
 ficient ground for referring it to a Master. (2) Where 
 the charges, too, appeared to be exorbitant — as where they 
 amounted to 109Z., — that, of itself, was held a sufficient 
 reason to order the bill to be taxed, even after payment 
 made, and after the death of the assignee who made the 
 payment. (3) If there is no necessity for a provisional 
 assignment, the expense of it will not be allowed in tax- 
 ation. (4) 
 
 The provision in the statute, for ascertaining the costs 
 when the assignees are chosen, is merely directory; and 
 it will be no objection to the petitioning creditor's right to 
 be reimbursed, that all the costs of prosecuting the com- 
 mission (previous to the choice of assignees) were not then 
 actually taxed by the commissioners. (5) When an as- 
 signee happens to be removed, the petitioning creditor 
 cannot claim the costs from such removed assignee, unless 
 any collusion can be proved between him and the existing 
 assignees. (6) 
 
 In case there are not sufficient assets, the petitioning 
 creditor, and not the assignees, is personally liable to the 
 solicitor for the costs up to the choice of assignees. (7) But 
 in one case of this kind, the Vice-Chancellor said, that he 
 had no jurisdiction to order the petitioning creditor to pay 
 these costs, though he was liable to the solicitor in an 
 action at law like any other client. (8) In another case, 
 however, where a commission was even superseded by the 
 
 (1) Ex parte Hewitt, Buck, 388. (5) Ex parte Hai/nes, 1 G. & J. 
 
 (2) Ex parte Sutton, 4 Mad. 395. 55. 
 
 479. (6) In re Gibson, lG.&5. 303. 
 
 (3) Ex parte Neale, Buck, 1 11. (7) Ex parte Haynes, supra; and 
 
 (4) Ex parte M' W-^z'ffiflJws, 1 Mad, see ante, 102. 
 
 141. (8) Anon. Buck, 475.; and see 
 
 post, " Solicitor."
 
 Sect. 2.] OF COSTS. 847 
 
 bankrupt for invalidity, the Court there made an order on Of issuing 
 
 the petitioning creditor to pay the messenger his bill up to j^j^gioji^ 
 
 the choice of assignees. (1) 
 
 Section II. 
 Of Costs subsequent to the choice of Assignees. 
 
 Before the new act the commissioners had only power to Subse- 
 tax the costs up to, and including the choice of assignees (2) j ^^^ ^^^_ 
 the taxation of all subsequent costs being directed (3) to be able by 
 made by a Master in Chancery. This limitation of the •,-,'^^ 
 jurisdiction of the commissioners was found to be very 
 inconvenient in practice; as the taxation of the bill by a 
 Master is attended with considerable more expense and 
 delay ; and this the assignees were either obliged to incur, or 
 else were compelled to submit to improper charges. A re- 
 medy, however, is provided for this inconvenience by the pre- 
 sent statute(4), which directs, that all bills of fees or disburse- 
 ments of any solicitor or attorney, for business done after 
 the choice of assignees, shall be settled by the commis- 
 sioners, except so much of such bills as may contain any 
 charge respecting any action or suit, which is to be settled 
 by the proper officer of the Court. And if any creditor to When 
 the amount of 20/. be dissatisfied with the taxation of the \^^ taxed 
 commissioners, he may have the bill taxed by a Master in I'.v a 
 
 IVTfisf pp 
 
 Chancery, who is to receive for the taxation and the cer- 
 tificate thereof 20s., and no more. 
 
 As to the costs of any action, suit, or other proceeding, the 4^^'o"^®^ 
 assignees themselves are personally answerable for these costs subse- 
 to the solicitor whom they employ (5) ; but in case of a defici- quent 
 ency of assets, (though there is no provision of this kind in 
 the statute,) they, perhaps, might come for contribution upon 
 
 (1) Ex parte Johnson, 1 G. & J. (4) Section 14. 
 
 23. (5) '2 Camp. 175. 1 Star. 278. ; 
 
 (2) 5 G. 2. c. 30. s, 25. and see ante, 329. 
 (.") Ibid, section 46.
 
 848 
 
 OF COSTS. 
 
 [Ch. 22. 
 
 Assignees 
 to keep an 
 account. 
 
 Audit of 
 accounts. 
 
 Costs of 
 witness. 
 
 the creditors who have proved debts under the commission, 
 provided such costs were legally and properly incurred, 
 and the proceeding was instituted with the sanction of 
 the creditors. But if the assignees choose to prosecute 
 a suit in equity, without the consent of the major part in 
 value of the creditors of the bankrupt (pursuant to the 
 provision of the 88th section of the new statute) (1), — they 
 cannot, in that case, come either upon the creditors or the 
 estate of the bankrupt for the costs of such suit, though 
 they are personally liable themselves to the solicitor em- 
 ployed by them (2). 
 
 With respect to the general costs of working the com- 
 mission, the assignees are directed (by the 101st section of 
 the new statute) to keep an account of all payments made 
 by them on account of the bankrupt's estate ; which ac- 
 count, every creditor who has proved a debt, has a right 
 at all reasonable times to inspect. And by the 106th 
 section, they are also required to deliver in upon oath a 
 true statement in writing of all their receipts and payments 
 at the meeting appointed by the commissioners to audit 
 their accounts (3) ; upon which audit, the assignees are to 
 be allowed to retain all such money as they shall have 
 expended in suing out and prosecuting the commission, and 
 other just allowances. 
 
 By section 35., where any person known or suspected 
 to have any of the estate of the bankrupt in his possession, 
 or who is supposed to be indebted to the bankrupt, shall 
 be summoned to attend before the commissioners, such 
 person may have such costs and charges as the com- 
 missioners shall think fit. And every xvitness, summoned 
 to attend before the commissioners, shall have his necessary 
 expenses tendered to him in like manner as is by law 
 required, upon service of a subpoena to a witness in an 
 action at law. 
 
 (.1) See ante, 524. 
 
 (2) Ex parte Whitchurch, 1 Atk. 
 210, 
 (5) See ante, 326.
 
 Sect. 2.] OF COSTS, 849 
 
 The statute thus makes a material difference between a Distinc- 
 •wilness, and a person suspected to have any of the bank- tween the 
 rupt's estate in his possession ; for the latter is bound to two cases, 
 attend, although his expenses should not have been pre- 
 viously tendered to him (1); though if he be in reality with- 
 out the means of taking the journey, that perhaps may be 
 an excuse for not obeying the summons. (2) But it seems 
 (as Lord Eldon observed upon one occasion) more con- 
 sistent with justice, that the costs should be ascertained 
 after the examination, rather than before it ; for the result 
 of the examination will afford a clearer view of what the 
 party examined is entitled, in point of expense, to be re- 
 imbursed. As, if an adjournment of the meeting take place 
 from time to time, it will then be impossible (without taking 
 this into consideration) to ascertain correctly the expenses, 
 eundo, redetmdo, et morando. Or, if a person so to be 
 examined had concealed the property of the bankrupt, — it 
 would then be matter of regret, that the assignees had (as 
 a condition precedent to his examination) been obliged to 
 pay a sum of money to one, who had thus anticipated his 
 own repayment. (3) 
 
 When costs are ordered to a party so summoned before When 
 
 the commissioners, they may be recovered in an action of ^°s** "^^y 
 
 , . 1 • • 1 be reco- 
 
 assumpsit against the assignees ; ana it is not necessary that yered in 
 
 the order for the costs should be in writing. (4) assumpsit. 
 
 When a witness, or other party summoned before the Applica- 
 
 commissioners, is arrested, and applies to be discharged *'?" °^ 
 
 witness to 
 from the arrest, the costs of the application will, in general, be dis- 
 
 depend upon whether a contempt was intended or not by the charged 
 
 party arresjting. If the arrest amounts to a contempt, they rest. 
 
 will be ordered to be paid by the officer or person causing 
 
 the arrest ; and in one case where the witness was arrested 
 
 by the bankrupt, they were so ordered to be paid. (5) 
 
 (1) Ex parte Roscoe, 2 Rose, (3) 2 Rose, 348.; and see ante, 
 348. Ex parte Benson, ibid. 75. 162. 
 
 Battyev. Gresley, 8 East, 319. (4) Yarkerv. Botham, lEsp.64. 
 
 (2) Ibid. (5) Ex parte Byne, 1V.&B.316.; 
 
 and see ante, 161. 
 3 I
 
 850 
 
 OF COSTS. 
 
 [Ch. 22. 
 
 Costs of The joint creditors under a separate commission are not 
 
 ^Htors^as^^'to entitled to have the expenses of a solicitor, employed by 
 
 conduct- them to conduct examinations, &c. before the commis- 
 
 ingexami- ^i^^^^^.^ paiJ out of the joint fund, (l) 
 nations. ' * '' ^ 
 
 On peti- 
 tion to 
 stay cer- 
 tificate. 
 
 Section III. 
 Of Costs on Petition. 
 
 It is a general rule, that if there has been no misconduct in 
 the bankrupt, a petition to stay a certifcate^ when dismissed, 
 is dismissed with costs to be paid by the creditor opposing 
 the certificate. (2) But, when there are circumstances in 
 the conduct of the bankrupt, which preclude him from any 
 claim to the indulgence of the Court, the petition is then 
 frequently dismissed without costs (3) ; and this notwith- 
 standing he may be strictly entitled to his certificate. 
 
 On peti- 
 tion for 
 
 deas. 
 As to 
 bankrupt's 
 exemption 
 from costs. 
 
 With respect to costs on a petition for a supersedeas : — 
 Where a bankrupt petitions the Lord Chancellor to super- 
 sede his commission, and an issue is directed, though he 
 fails upon the trial of the issue, he escapes the payment of 
 costs ; and the costs of the assignees are paid out of the 
 estate ; for the Court has, in general, no power to give costs 
 against an uncertificated bankrupt. (4) The consequence of 
 this exemption has been, however, that petitions of this kind 
 have multiplied to the great oppression of creditors, and 
 the waste of the bankrupt's effects ; as the costs, even of 
 the successful defence against such petitions, must fall upon 
 the estate. Where the facts, therefore, are disputed upon 
 
 {l) Ex parte Longman, 1 Rose, parte iV^icAo/s, ibid. Ex parte ir<?»- 
 .'^o.'^, net, ibid. 331. Ex parte Gardner, 
 
 1 V. & B. 45. 1 Rose, 577. Ex 
 parte Stevens, Buck, 589. Ex parte 
 Enderhy, 5 Mad. 7G. Ex parte 
 Bryant, 1 G. & J. 205. 
 (4) But see post, 855. 
 
 303. 
 
 (2) Ex parte Warwick, 14 Ves. 
 138. Ex parte Bank of Scotland, 
 1 Rose, 375. iV.&B. 5. 
 
 (3) Ex parte Stracy, 1 Rose, 67. 
 Ex parte Black, ibid. note. Ex
 
 Sect. 3.] OF COSTS. 851 
 
 such a petition, and the bankrupt is in a situation to try Onpetition 
 the validit3'of the commission at law, the Court will (unless "{^l/^^^f^" 
 
 under special circumstances, where directions may be neces- 
 
 sary to assist the trial,) leave him to his action at law; for 
 if he fiiils in an action,, he pays costs like any other plain- 
 tiff. (1) And where the bankrupt is really in a situation When not 
 to try the validity of his commission at law, he will not be \q^^^ of 
 allowed the costs of a petition to supersede it ; notwith- petition. 
 standing he has a verdict on an issue in his favour, and an 
 order for a supersedeas is thereupon made ; for he ought to 
 have proceeded in the first instance at law, instead of pre- 
 senting a petition to supersede. (2) Therefore, though the 
 assignees will be directed to pay the costs of the ti'ial, they 
 will not be made to pay the costs of the petition ; for it is 
 their duty, as trustees for the creditors, to appear and re- 
 sist any petition of the bankrupt to supersede the commis- 
 sion. (3) And where a commission is superseded merely for 
 a defect in form as to the petitioning creditor, and there is 
 no doubt as to the act of bankruptcy, &c., the costs of the 
 supersedeas only will be allowed , though it would be other- 
 wise if the act of bankruptcy had not been fully proved. (4) 
 
 But, notwithstanding the Court has, in general, no Wlien or- 
 
 power to give costs against a bankrupt while the commis- "'^^'^" ^^ 
 . , . . , , , . [. ,. pay costs 
 
 sion is subsistmg, — yet where on the petition of a creditor a on the 
 
 commission is ordered to be supei'seded, on the ground of g™""" of 
 
 concert. 
 concert between the bankrupt and the petitioning creditor, 
 
 the Court has, in such a case, ordered the costs of super- 
 seding it to be paid by the bankrupt and the petitioning 
 creditor. (5) 
 
 If, upon the bankrupt's application, an order is made to 
 supersede the commission, with costs to be paid by the 
 
 (1) Ex parte ^i//?fl/rf, Buck, 220. (4) Ex parte Goodwin, 1 Atk. 
 
 (2) Ex parte Marks, iG.&J. 101.; and see Ex i^tarte Hi/lliard, 
 70. 1 Atk. 147. 
 
 (3) Ex parte Edwards, Buck, (5) Ex parte Green, 1 G. & J. 
 232. 188. 
 
 3 I 2
 
 852 
 
 OF COSTS. 
 
 [Ch. 22. 
 
 On petition 
 for super- 
 sedeas. 
 
 When pe- 
 titioning 
 creditor 
 allowed 
 costs. 
 
 Separate 
 commis- 
 sion super- 
 seded in 
 favour of 
 joint one. 
 
 petitioning creditor and the solicitor who sued it out, the 
 bankrupt may proceed against both of them or either. (1) 
 
 When the petitioning creditor succeeds in resisting the 
 bankrupt's appHcation to supersede the commission, he will 
 be allowed his costs of opposing the petition out of the 
 bankrupt's estate as between attorney and client (2); and 
 the like in the case of an assignee opposing the petition. (3) 
 But when the petition charges collusion, and the circum- 
 stances are suspicious, costs will not be given, though the 
 petition fails. (4) And if the petitioning creditor does not 
 succeed in resisting the application, he will then be di- 
 rected to pay the costs of superseding the commission, and 
 of the petition — as well as the costs of any proceeding at 
 law or in equity in the matter — to the bankrupt, or the 
 creditor who succeeds in superseding it. (5) For, though 
 costs are not, in general, given to a party upon an ap- 
 peal from the deliberate judgment of the commissioners, 
 even though their judgment appears to be wrong (6), (ex- 
 cept indeed in cases of fraud,) — yet the rule does not extend 
 to ex parte cases, where the opposite side had not (as in 
 the case of the adjudication of the bankruptcy) the oppor- 
 tunity of being heard before them, and the commissioners, 
 therefore, were not in reality able to exercise a deliberate 
 judgment. (7) 
 
 "Where a separate commission is superseded merely to 
 give effect to a subsequent joint one, the petitioning cre- 
 ditor under the first commission (unless he has been acting 
 mala Jide) receives all the costs out of the joint estate, 
 whether arising out of the first commission, the petition to 
 supersede, or the supersedeas; and if he is a joint and 
 separate creditor, he may elect whether he will be paid 
 
 91. 
 
 (1) Ex parte Bishop, 8 Ves.333. 
 
 (2) Ex parte Botlomley, 5 Mad. 
 
 (3) Ex parte Bryant, 2 Rose, 1 . 
 
 (4) Ex parte Stevens, 4 Mad. 
 256. 
 
 (5) Ex parte Gulston, 1 Atk. 159, 
 140. Ex parte He}ning,Buck,350. 
 
 (6) Ex parte Allen, 1 C. B. L. 2. 
 Ex parte Moggridge, ibid. 
 
 (7) Ex parte Greenway, Buck, 
 412.
 
 Sect. 3.] OF COSTS. 853 
 
 such costs out of the joint, or separate estate. (1) But the Onpetition 
 
 costs of a commission superseded for non-prosecution will gedlaf^'^' 
 
 not be permitted to be paid out of the bankrupt's estate. (2) 
 
 If a commission is taken out contrary to good faith, the When 
 
 party has a right to make a formal application to the Court f^o™™s- 
 
 ,fl ., . 1-1 a ^ • sion taken 
 
 to supersede ]t, with a view to be indemnined agamst any outafrainst 
 
 costs he may have incurred, by the commission being taken good faith, 
 out and not proceeded in, — notwithstanding the com- 
 mission would have been supersedable at the Bankrupt 
 Office under the general order. (3) 
 
 Where a creditor states a case of fraud against the When al- 
 bankrupt which he fails in proving, the petition for super- J58^^'°" of 
 seding the commission will then always be dismissed with proved, 
 costs. (4) 
 
 Where a commission was superseded with costs to be Where a 
 paid by the petitioning creditors — and one of them (who fome sole a 
 was a Jeme sole) married after the costs were taxed, — [„„ credi- 
 her husband was ordered to pay the taxed costs within a tor. 
 fortnight. (5) 
 
 With respect to costs upon other petitions inhankruptcy, OnpeO- 
 — it is a general rule, that if a petitioner do not in any pe- ^^°"* *" 
 tition pray his costs, he cannot have them awarded to Costs 
 him. (6) But costs, though not specifically prayed in a "^^st be 
 petition, may nevertheless be given under the word " ^jr- 
 penses" if expenses be prayed in it. (7) And where a 
 petition is presented in a case, in which the Court has no 
 jurisdiction, the respondent is always entitled to the costs 
 of opposing it. (8) 
 
 Costs are never given to a party upon a general petition Petition 
 (any more than on a petition for a supersedeas) appealing from ff^^gnt 
 
 (1) Ex parte Brown, I Rose, (4) Ex parte ieui, Buck. 75. 
 433. Ex parte Smith, 1 G. & J. (5) Ex parte Eagle, Buck. 548. 
 256. (6) Ex parte Atkinson, Buck. 
 
 (2) Ex parte Sanden, 1 Rose, 87. 215. 
 
 Ex parte EUis, 7 Ves. 135. Ex (7) Ex parte Hardenburgh, 
 
 parte Leicester. Ex parte Layton. 1 Rose, 204. 
 
 Ex parte i/ar£?u;ic/te, 6 Ves. 429. (8) Ex parte J/&«n, iG. &J. 
 
 (3) Ex parte Lowe, 1 G.&J. 78. 210. 
 
 3 1 3
 
 854 
 
 or COSTS. 
 
 [Ch. 22 
 
 On 2)ctl- 
 tions in 
 general. 
 
 ofconiinis- 
 sioners. 
 
 Costs of 
 the tlay. 
 
 Costs for 
 default of 
 appear- 
 ance. 
 
 Defective 
 attest- 
 ation. 
 Ground- 
 less impu- 
 tations. 
 
 the deliberate judgment of the commissioners (1), notwith- 
 standing their determination appears to have been wrong, 
 and the Court may have thought it necessary to direct an 
 issue, or a trial at law. But where the determination of 
 the commissioners is ex parte, and the person aifected by 
 their decision has no opportunity of being heard, we have 
 already seen (2), that this rule does not prevail. And 
 where an issue is directed by the Court, and the result 
 of the trial is against the decision of the commissioners, — 
 in this case, also, as in the case of a petition for a super- 
 sedeas (3), the costs of the issue are allowed (4), but not 
 the costs of the petition. (5) 
 
 When a petition is ordered to stand over, the costs of 
 the day will be ordered to be paid by the party occasioning 
 the delay. (6) But they can only be obtained by a special 
 order of the Court made at the time of adjourning the 
 hearing of the petition. When an order is made for the 
 payment of " the costs of and occasioned by the present 
 application," — such order includes the costs of an inter- 
 locutory order, which was made in pursuance of part of 
 the prayer of the petition. (7) 
 
 If a petitioner makes default in not appearing when the 
 petition is called on, the respondent must produce an office 
 copy of the affidavit of service before the rising of the 
 Court, in order to be entitled to costs. (8) 
 
 A petition, not properly attested by a solicitor pur- 
 suant to the general order (9), will be dismissed with 
 costs. (10) And costs will also be given against a party, 
 who makes groundless imputations in a petition, notwith- 
 staaiding an order might have been made upon one part of 
 the prayer of it. (11) Costs, also, as between attorney and 
 
 (1) Ex parte All€7i. Ex parte 
 Moggridge, 1 C. B. L. 2. 
 
 (2) Ante, 852. 
 (5) Ante, 851. 
 
 (4) 1 Mont. Dig. 141. 
 
 (5) Ex parte Edwards, Buck. 
 2.32. 
 
 (6) Ex parte Doncaster, Buck. 
 463. 
 
 (7) Ex parte Green, 1 G.&J. 
 188. 
 
 (8) Ex parte Astell, Buck. 296. 
 
 (9) August 12th 1809. 
 
 (10) Ex parte Raivlinson, 1 G. & 
 J. 19. 
 
 (11) Ex parte Vernon, 13 Ves. 
 270.
 
 Sect. 3.] OF COSTS. 855 
 
 client, will be given against a party, who makes an irrele- Onpeti- 
 vant or scandalous affidavit in support of a petition. (1) ^^^Jal 
 
 And a petition will in all cases be dismissed with costs, 
 
 where the relief prayed is provided for by a general I^elief by 
 order. (2) Jrder! 
 
 When the Master makes his report, after costs are re- Exception 
 ferred to him to be taxed, and a petition is presented for *° Y^^^' 
 leave to except to the report, the petitioner must pay the port, 
 taxed costs into Court. (3) 
 
 It is a general rule, that no court permits an appeal No appeal 
 against an order for costs only. (4) Therefore a party can- ^S^>"st 
 not apply to correct an order (once signed and passed in costs only, 
 respect of costs) by a separate petition as to the costs alone ; 
 but when the question is, not as to the personal payment 
 of costs, but whether they shall be payable out of a par- 
 ticular fund, a petition for rehearing may then be presented 
 for determining that question. (5) 
 
 Where several persons are directed to pay costs, the Court will 
 Court will not in bankruptcy determine the proportions, in contribu- 
 which they ought to contribute amongst themselves. P'or tion. 
 the question of contribution is altogether collateral to the 
 bankruptcy, and is the proper subject of an action at law, 
 or a bill in equity for an apportionment. (6) 
 
 In general (as has been already stated (7 j ) costs cannot be Bankrupt 
 given against an uncertificated bankrupt (8), notwithstand- . *? 
 ing he presents a petition which is dismissed even on the guilty of 
 ground of its being multifarious (9), or unnecessary. (10) "■^"''j&c. 
 But in a case of fraud, misconduct, or vexation, the Court 
 will subject him to costs — as, where he presented a 
 third petition for the same purpose as two former, which 
 
 (1) Ex parte Simpson, 15 Ves. (6) Ex parte Wilmhurst, 1 G. & 
 476. Anon. 3 V. & B. 93. J. 4. 244. 
 
 (2) Ex parte Watts, 1 Rose, 4.36. (7) Ante, 850. 
 
 (3) Ex parte I/eig//., 4 Mad. 394. (8) 1 C. B. L. 2. Ex parte 
 
 (4) Ex parte Slack, 1 C. B. L. 2. Wright, 2 Ves. 11, Ex parte Bil- 
 
 (5) Ex parte Baines, iG. &J. liald, Buck. 220. 
 
 259. (9) Ex parte Coles, Back. 256. 
 
 (10) Ex parte Parker, ibid. 313. 
 
 3 I 4
 
 856 
 
 OF COSTS. 
 
 [Ch. 22. 
 
 071 peti' 
 tions in 
 general. 
 
 Petition 
 for leave 
 to surren- 
 der. 
 
 Petition 
 to remove 
 assignee. 
 
 By joint 
 creditors. 
 
 Equitable 
 mortgagee. 
 
 had been dismissed, the Court made an order that he 
 should pay the costs, and if he were unable to pay them, 
 that he must be committed; — observing, that it was like 
 the case of a pauper dispaupered for misconduct — and that 
 if a bankrupt behaved ill, so he ought, in like manner, to 
 lose his privilege. (1) So, likewise, in a case of fraud, costs 
 will be given on a bill filed against an uncertificated bank- 
 rupt. (2) And though the Court has refused, upon dis- 
 missing a bankrupt's petition, to give the respondent costs 
 out of the estate, the solicitor of the bankrupt was in one 
 case ordered to pay 4-Os. costs to the respondent for pre- 
 senting a petition, which was deemed by the Court to be 
 wholly unnecessary. (3) When a bankrupt petitions for 
 leave to surrender after the time for the surrender is ex- 
 pired, he in that case pays the costs of the application. (4) 
 Upon a petition to remove an assignee for the conveni- 
 ence of the estate, the assignee does not in such case pay 
 the costs. (5) Nor is a removed assignee liable to the pe- 
 titioning creditor for the payment of his bill of costs as 
 taxed by the commissioners, unless there is collusion 
 proved between the removed and the new assignee. (6) 
 
 Upon a petition by joint creditors to prove against the 
 separate estate, no costs are given, where there are no 
 joint effects nor solvent partner. (7) 
 
 When an equitable mortgagee petitions for a sale of the 
 mortgaged premises, he is entitled to costs, if there is a 
 written instrument specifying the agreement upon which 
 his claim arises (8) ; notwithstanding parol evidence may 
 be necessary to explain it. (9) But where there is a mere 
 
 (1) Ex parte Shatv, 2Ves. jun. 
 40. ; and see Ex parte Green, 1 G. 
 &J. 188. 
 
 (2) Lock V. Bromley, 5 Ves.jim. 
 40. 
 
 (s) Buck. 51.5.; and see post, 
 " Solicitor." 
 
 (4) Ex parte Carter, 4 Mad.. 5 94. 
 
 (5) Anon. 5 Mad. 76. 
 
 (6) Ex parte Gibson, 1 G. & J. 
 303. 
 
 (7) Ex parte Bradshaw, 1 G. & 
 J. 99. 
 
 (8) Ex parte Brightwen, 1 G. & 
 J. 1 4S. Ex jjartc Sikes, ibid. 349.; 
 but see Ex parte Home, 1 Mad. 
 622. 2 Mad. 281. 
 
 (9) Ex parte Vauxhall Bridge 
 Company, iG. &J. 101.; and see 
 Ex parte Trew, 3 Mad. 372.
 
 Sect. 4.] OF COSTS. 857 
 
 deposit of the title deeds, without any written instrument to Onpeti- 
 
 explain the purpose of the deposit, he in this case pays the ^l^^j-al 
 
 costs of his petition. (1) 
 
 In one case, where costs were awarded upon a petition in Whether 
 
 bankruptcy, Lord Redesdale would not permit them to be J-^j. ^^^^^ 
 made the subject of an action at law. (2) 
 
 Upon a petition against commissioners^ they will not be Petition 
 
 ordered to pay costs, unless in respect of conduct out of ^^^^"^^js- 
 
 the course of their duty as commissioners (3) ; and when sioners. 
 they are made parties to a petition without sufficient 
 grounds, they will then be entitled to costs. (4) 
 
 entitled to 
 costs out 
 
 Section IV. 
 
 Of Costs in Actions and Suits by and against Assignees, and 
 other Parties concerned in the Commission. 
 
 Where an assignee is made a party to an action, or Assignee 
 suit, for the purpose of sustaining a litigated commission, 
 he is entitled to his costs out of the bankrupt's estate, as of bank 
 between attorney and client. For, as a bankrupt when- ^"fV 
 ever he thinks fit can bi*ing an action against his assignee, 
 and it is the assignee's duty upon every occasion of this 
 kind to sustain the interest of all the creditors as well as 
 his own, it is highly reasonable, that he should be in all 
 such cases completely indemnified ; otherwise few persons 
 would be prevailed on to accept the office of assignee. (5) 
 
 When notice has been given in an action by or against When no- 
 assignees to dispute the petitioning creditor's debt, the f'^j-^'^^J* 
 trading, or the act of bankruptcy, — if the assignees prove the bank- 
 the matter so disputed, or the other party admit the same ^"P^^y- 
 on the trial, the judge is empowered by the new statute (6), if 
 
 (1) Ex parte Warry, 19 Ves. (3) Exparte lS'c•a?•//^, 14Ves. 104. 
 472. Ex parte Garhutt, 2 Rose, 15 Ves. 293. 
 
 78. ; and see ante, 202. (4) Ex parte Steele, 16 Ves. 161. 
 
 (2) In re Dillon, 1 Sch. & Lef. (5) Ex parte Bryant, 2 Rose, 1. 
 HO. Dub. tam Lord EUenborough. (6) Section 90. 
 
 Hartop V. Jiickes, 2 M. & S. 459.
 
 858 
 
 OF COSTS. 
 
 [Ch. 22. 
 
 Jn actions. 
 
 Assignees 
 must pay 
 costs of an 
 action, 
 though no 
 assets. 
 
 Bound by 
 court of 
 conscience 
 act. 
 
 When pro- 
 ceedings 
 refused to 
 be staid 
 till pay- 
 ment of 
 costs of 
 former 
 action. 
 
 he thinks fit, to grant a certificate of such proof or ad- 
 mission, which will entitle the assignees to the costs occa- 
 sioned by the notice, to be taxed by the proper officer, 
 and added or deducted according as the verdict may be. 
 But this provision of the statute will not entitle the as- 
 signees to costs, where they have been nonsuited. (1) A 
 similar provision is also made as to suits in equity (2), 
 when, if the assignees prove the matter so disputed, 
 the Court (if ;t see fit) may order the party giving the 
 notice to pay the taxed costs occasioned by it ; and the 
 service of the notice may be proved upon the hearing of 
 the cause. 
 
 Assignees, though suing in a representative capacity, 
 are not within the exemption from costs given by the 
 2.3 Hen. 8. c. 15. to executors and administrators; nor will 
 the Court, when the assignees are nonsuited upon the trial, 
 suspend the payment of costs until they receive sufficient 
 assets to pay them, notwithstanding they make an affidavit 
 that they have no assets in hand. (3) 
 
 The 39. and 40. Geo. 3. c. 104., which deprives a plain- 
 tiff of costs where the sum recovered is less than 5/., has 
 been held to extend to assignees ; but where the defendant 
 in such case had disputed the petitioning creditoi''s debt, 
 the Court ordered the suggestion to be so entered, that the 
 plaintiff might not be deprived of the costs thereby occa- 
 sioned, but only of those costs which would have been in- 
 curred had no notice been given. (4) 
 
 Where an action was commenced by assignees under 
 a former commission, which was superseded, and the 
 assignees under a subsequent commission brought a fresh 
 action — the Court, of King's Bench refused to stay pro- 
 ceedings until the costs of the former action were paid, 
 though the cause of action was the same. (5) 
 
 (1) Atkins V. Seivard, iB.&B. (4) Ward v Abrahams, 1 B. & 
 275. A. 5G7 
 
 (2) Section 91. (5) Dawson V . Sampson, 2 ChitU 
 (5) Andretvs v. Sealii/, 8 Pri„212< Rep. 146.
 
 Sect. 4.] OF COSTS. 859 
 
 When an action is brought against an assignee (or In actions. 
 indeed against any other party) by the direction of the wq^^^^^ 
 Lord Chancellor, it is a constant rule in the Court of assignee 
 Chancery, to make the defendant pay all costs, if he de- ^^^'^ *u ^^ 
 feats the action by a formal objection, (1) a formal 
 
 If assignees improperly resist a plaintiff's demand, and objection. 
 are brought before the Court by supplemental bill, they g^^j j^ 
 may be made liable to the costs of the whole suit; but supple- 
 where no application is made to them by the plaintiff be- j^-j^" '^ 
 fore the filing of the bill, such costs will not in that case 
 be given against them. (2) 
 
 By section 44. of the new statute it is provided, that if Wliere 
 upon the trial of an action brought against any person for ^'o^ble 
 any thing done in pursuance of that statute, there shall be a given, 
 verdict for the defendant — or, if the plaintiff shall be non- 
 suited, or discontinue his action or suit after appearance 
 thereto — or if, upon demurrer, judgment shall be given 
 against the plaintiff, — the defendant shall in either of these 
 cases recover double costs. This right, however, to double 
 costs will not entitle the party to receive twice the actual 
 amount of single costs, but only the common costs, and 
 one half oi the common costs. (3) In like manner treble 
 costs, where given by any statute, are composed of, first, 
 the common costs ; secondly, halfoi those costs ; and lastly, 
 7/tt^'of the latter half. 
 
 When the commissioners have incurred any costs, in Commis- 
 defending an action brought against them by any person sjoners en- 
 for an act done by them, in the strict discharge of their comnens- 
 duty, they have a right to be compensated by the assignees, ation. 
 notwithstanding the assignees have in fact not received suf- 
 ficient to pay the expenses of the commission. (4) 
 
 A bankrupt is personally liable for the costs of an action Bankrupt 
 commenced by him, and proceeded in by the assignees in P6f^o"^lly 
 his name, notwithstanding he has obtained his certificate ; costs. 
 
 (.1) Per Lord Kenyon, Wrayv. (.") HuUock, 484. 
 
 i^arwis. Peak e, 69. (4) Ex parte /^wii/iiwi/e, IbVes. 
 
 (2) Whilcomhy.MmcUntSMiA. 234. 
 9].
 
 860 
 
 OF COSTS. 
 
 [Ch. 22, 
 
 In actions. 
 
 When pro- 
 ceedings 
 stayed in 
 action by 
 bankrupt, 
 till costs of 
 a former 
 action 
 
 paid. 
 
 Bankrupt 
 not en- 
 titled to 
 costs as 
 against 
 executors. 
 
 though when he acts fairly he will be protected from such 
 costs. (1) 
 
 Whenever a bankrupt brings a second action for the 
 same cause as a former one, in which the merits were fully 
 tried, and the second action appears to be evidently vex- 
 atious, the proceedings therein will be stayed until the 
 costs of the former action are paid. Thus where a bank- 
 rupt petitioned that the commission might be superseded, 
 or that an issue might be ordered to try the validity of the 
 petitioning creditor's debt, and the petition was dismissed — 
 upon which he brought an action of trover against his as- 
 signees, and a verdict was found against him, which for a 
 long period was acquiesced in — and then, after the division 
 of the effects by the assignees, another action was brought 
 for money had and received ; — it was held, under these 
 circumstances, that the proceedings in the second action 
 should be stayed until the costs of the former one were 
 paid. (2) And where an uncertificated bankrupt (after being 
 nonsuited in an action of trespass for false imprisonment 
 in the Court of King's Bench, on the ground of not being 
 prepared with evidence to prove the validity of a former 
 commission) brought a fresh action in the Common Pleas, — 
 the last mentioned Court ordered the proceedings to be 
 stayed until he paid the costs of the former action, con- 
 sidering that he ought to have been prepared with such 
 evidence upon the first trial. (3) 
 
 Where an action was brought against a bankrupt by 
 executors after he had obtained his certificate, he was held 
 not entitled to costs though he recovered a verdict ; — for 
 the bankrupt statutes, the Court said, were to be construed 
 in the same manner as the 23. H.8. c. 15., and the 4. Jac. 1. 
 c. 3., which first gave a defendant costs upon obtaining a 
 verdict ; and those statutes are held not to apply to execu- 
 
 (1) Ex parte Seaman, 1 J. & G. 
 260. 
 
 (2) Gravenor v. C'a^jc, Say. Costs, 
 245, 3d edit. "Wils. 150, 2 Bl. 741. 
 
 (5) Crawley v. Impeyy 8 Taunt, 
 407. 2 Moore, 460.
 
 Sect. 5.] OF COSTS. 861 
 
 tors. ( 1 ) And where a bankrupt who was sued as executor, In actions. 
 pleaded a false plea and a verdict was found against him — Where 
 and the plaintiff obtained judgment for his costs de bonis bankrupt 
 
 as 
 
 proprits, — it was held, that though the bankrupt afterwards ^^^ 
 obtained his certificate, he was still liable to be taken in pleads a 
 execution for the costs. (2) *^^^^ P^^^* 
 
 When a man brings an action ex contractu against a Costs fol- 
 bankrupt, whether before or after a commission has issued, low the 
 he takes the chance of losing his costs, in case the debt acjJQjj ^^ 
 should be barred by the certificate ; for the costs cannot in contractu. 
 such a case be distinguished from the debt ; and if the party 
 be discharged from the one, he cannot remain liable to the 
 other. Therefore, if a debt arise before, but a verdict is 
 obtained and the costs taxed after, the bankruptcy of the 
 defendant, (though previous to the allowance of the cer- 
 tificate) — the costs relate to and are considered as a part of 
 the original debt, and the certificate extends to both. (3) 
 
 Section V. 
 
 When Security for Costs will be required. 
 
 Where an uncertificated bankrupt sues as trustee for Ofabank- 
 
 his assignees, and for their benefit, and not for the fruits fof benefit 
 
 of his own personal labour, he has been required to give ofhisas- 
 
 security for costs (4) ; for, though it cannot be laid down '^^Snees. 
 as a general rule, that an uncertificated bankrupt must in all 
 cases give such security where an action is brought by him, 
 yet it is held to be but fair, if the action is really brought for 
 
 (1) Martin v. Norfolk, 1 H. B. (126) of the new statute, there is, 
 
 528. This case was decided with however, nothing said about costs. 
 
 reference to the 5 G. 2. c. 30. s. 7. (2) Howard v. Jcrnviet, 3 Burr, 
 
 which enacted, that the bankrupt, 1368. 1 Bl. 400. 
 
 when he succeeded in an action (3) Ex parte Poucher, 1 G. & J. 
 
 brought against him after obtaining 385. Ex parte Parkinson, ibid, 
 
 his certificate, should " recover his 386. note (a), and see ante, 276. 
 
 full costs." In the parallel section 596. 
 
 (4) Webb V. Ward, 7 T. R. 296.
 
 8C2 
 
 OF COSTS. 
 
 [Ch. 22. 
 
 Upon 
 other pro- 
 ceedings. 
 
 Where 
 such secu- 
 rity re- 
 fused. 
 
 Prelimi- 
 nary pro- 
 ceedings 
 where de- 
 fendant 
 entitled to 
 security. 
 
 the benefit of the assignees, that tliei/ should be responsible 
 for the costs. Accordingly, in one case of this kind, where 
 the defendant obtained a verdict against the bankrupt, the 
 Court of Common Pleas refused to grant the plaintiff a 
 new trial, unless the assignees consented to be bound by 
 the event of the action, and to be responsible for the 
 costs. ( 1 ) 
 
 But where a joint action was brought by a bankrupt and 
 another person (who was a prisoner in Newgate), the Court 
 of Common Pleas refused in this case to require such se- 
 curity ; though the judgment of the Court here seemed to 
 proceed, upon the consideration of the circumstance of the 
 imprisonment of one of the plaintiffs (2), rather than in 
 respect of the bankruptcy of the other. And, indeed, a 
 rule for security for costs will not in general be granted, 
 merely on account of the poverty or insolvency/ of a plain- 
 tiff (3); for, where an uncertificated bankrupt brings an 
 action for his own benefit — as to recover the produce of his 
 earnings since the bankruptcy — such security will not be 
 required. (4) So, where in a joint action it appeared, that 
 one of the plaintiffs was a foreigner residing abroad, and 
 the other a bankrupt in execution for debt, — the Court re- 
 fused to require them to find security for the costs, one of 
 the plaintiffs being within the jurisdiction of the Court, and 
 within reach of its process, and not coming under any of 
 the rules requiring such security to be given. (5) 
 
 Where a defendant is entitled to require security for 
 costs, he should in the first instance, and before any motion 
 is made to the Court upon the subject, apply for it to the 
 plaintiff's attorney ; for until the latter has refused to give 
 it — although the Court may grant a rule to shew cause why 
 the plaintiff should not find such security — they will not, at 
 
 (1) Noble V. Adavis, 7 Taunt. 59, 
 
 (2) Anon. 2 Taunt. 61. 
 
 (3) Goodright dem. Jones v. 
 Thrustout, Cas. Pr. C. P. 15. Wil- 
 lock, 443. Field q. t. v. Carron, 
 
 2H. B.27. Cowp. 24. 2Diek.Ch. 
 Cas. 7fi5. 
 
 (4) Cohen V. Bell, B. R. T. 
 44 G. o. 1 Tidd Pr. 468. 
 
 (5) M'Connelly. Jolmson, lEast, 
 451.
 
 Sect. 5.] OF COSTS. 863 
 
 any rate, make it a part of the rule, that the proceedings Uj)on 
 shall be in the mean time stayed ; for the rule might other- '^ccedinss.' 
 
 wise be often obtained merely for the purpose of delay. (1) 
 
 The defendant, also, must put in bail previous to his ap- 
 plication for the rule. But where a foreigner resident 
 abroad sued two defendants, and only one of them put 
 in bail, that one was permitted to require the plaintiff to 
 give security for costs, without putting in bail for the other 
 defendant. (2) 
 
 The general rule is, that the application for security Applica- 
 
 should be made, as soon as the defendant can reasonably do *'^°" 9}' 
 
 ' , '' security 
 
 it after his knowledge of the fact, on which he founds his ap- should be 
 plication. Therefore, where the defendant might have ap- ^^^^ 
 plied earlier, the motion was holden too late, after issue had 
 been joined and notice of trial given. And a similar motion 
 was also refused, where the defendant had obtained time to 
 plead, and agreed to take short notice of trial, — the Court 
 being of opinion, that he had thereby waived his oppor- 
 tunity of making the application, which must at that period 
 necessarily delay the plaintiff. (3) 
 
 Where after action brought, and before plea pleaded. Defendant 
 the plaintiff became bankrupt, and the defendant obtained cannot re- 
 an order for security for costs, and subsequently pleaded curity if 
 the plaintiff's bankruptcy in bar, — the Court held, that ^^ v^caA^ 
 though they could not deprive the defendant of the benefit tifF's bank- 
 of that plea, yet as the order for security for costs would not ruptcy. 
 have been made, if the defendant had said that he meant to 
 defeat the action by pleading the plaintiff's bankruptcy, the 
 order was discharged, with costs to be paid by the defend- 
 ant. (4) 
 
 In Equity, an application for security for costs will be too 
 late after answer, or obtaining an order for time to answer; 
 at least, if the plaintiff's residence abroad, or any other cause 
 
 (1) Cheap V. Popham, 2 Smith's (3) Michel v. Pareski, 2 H. B. 
 Rep. 661. iTidd. 470. 593. 
 
 (2) De la Preuve v. Due de Bi- (4) Minchin v. Hart, 1 Chitt. 
 ron, 4T. R. 697. Carr v. Shaw, 215. 
 
 6 T. R. 496.
 
 864 OF COSTS. [Ch. 22. 
 
 Upon for the application appear on the face of the bill, or were 
 "^ccdin7' known to the defendant at the time of filing the bill. (1) 
 
 The usual security for costs required of a plaintiff in 
 
 equity amounts to 40/. ; and the Court will not, even 
 under special circumstances, depart from the general rule 
 in this respect. (2) 
 
 (1) 2 Ves. 24. 557. 1 Dick. Ch. jun. 396. 5Ves.261. loVes.287.; 
 Cas. 147. 2 Brown, 609.; and see and see Hullock, 448. 
 J4 Ves. 518. 5 Bro. 370. 1 Ves. (2) Ogilvie v. Hearnc, 11 Ves. 
 
 598.; and see 2 Ves. 557.
 
 S65 
 
 CHAP. XXIII. 
 
 OF THE SOLICITOR TO THE COMMISSION. 
 
 Sect. 1 . Of his General Rights and Duties, 
 
 2. Of his Lien for Costs. 
 
 3. Of the Taxation of his Bill, and his Remedy for 
 
 Payment of it. 
 
 4. Of Actions and. other Proceedings hy and against 
 
 him. 
 
 5. Of his Liability for Misconduct^ and herein of his 
 
 General Liability. 
 
 Section I. 
 Of the General Rights and Duties of the Solicitor. 
 
 1 HE solicitor to the commission is nominated by the ma- How no- 
 jority of the assignees, and when so nominated is entitled """''ted. 
 to the custody of the proceedings under the commission. (1) 
 He may also be removed by such majority, and in that 
 case must deliver up the proceedings under the commis- 
 sion to any other solicitor who may be appointed in his 
 room ; for he has no lien upon them (as he has upon 
 other papers) for his costs. (2) The solicitor is a minister 
 of the Court (3), and is bound so far to watch over the 
 interests of the bankrupt's estate, as to protect it even 
 against his own demands — that is, where other parties 
 have preferable claims upon it. Thus, in the case of a 
 separate commission, it his duty to attend to the interest of 
 
 (1) Ex parte Watson, iC. B. L. (2) Anon. 2 Rose, 207. Ex parte 
 105. Ex parte Scarth, 15 Ves, 295. Scruby, ibid, note («). 
 Ex parte Tomlinson, 2 Rose, 66. (.3) 6 Ves. 1. 
 
 3 K
 
 866 
 
 OF THE SOLICITOR. 
 
 [Ch.23. 
 
 Rights 
 and du- 
 ties. 
 
 Disqualifi- 
 cation. 
 
 Cannot 
 take a 
 bond or 
 gift from 
 his client 
 during 
 pendenci/ 
 of a 3uit. 
 
 the separate creditors, and not to permit the joint debt of 
 himself and his partners to be proved to the prejudice of 
 those creditors. ( 1 ) It is inconsistent with the duties, also, of 
 the solicitor to the commission, to act as solicitor for the bank- 
 rupt (2); though it has been held to be no cause for super- 
 seding the commission, that he is also assignee. (S) He 
 cannot, however, act as banker to the estate (4) ; nor can he 
 be a commissio7ier under the same commission to which he 
 acts as solicitor. (5) He is disqualified, also, from be- 
 coming a purchaser of any part of the bankrupt's property, 
 even though the purchase is perfectly fair on his part, and 
 he bids openly in the presence of different persons in- 
 terested in the property. (6) 
 
 So — in order to prevent any abuse of the great power 
 and influence which an attorney must generally possess 
 over his client, and which might (if uncontrolled) enable a 
 dishonourable practitioner to commit the grossest impo- 
 sitions — the Courts will never give effect to any bond or 
 security, which is given or entered into by a client to his 
 attorney during the pendency of the cause or proceeding 
 in which the attorney is retained. In such a case the se- 
 curity will be either set aside entirely — or, at any rate, be 
 restricted in its operation to the amount of such fees, as 
 may be found due to the attorney upon a regular taxation 
 of his bill. The principle of these decisions is the policy 
 of the law founded upon the safety and convenience of man- 
 kind, and is quite independent of all fraud in the particular 
 transaction, according to the ordinary understanding of the 
 term. An attorney, therefore, is not permitted to take a 
 
 (l) Ex parte Story, Buck. 74. 
 
 (2)Exparte^os«, lR,ose,263. Ex 
 parte Vavglian, 14Ves. 513.; and 
 see 6 Ves.631. note, where Lord 
 Eldon observed, that he always 
 thought what Lord Thurlow said 
 was verj' wise, that there is no case 
 in which it is useful upon general 
 principles, that the same solicitor 
 should be employed on all sides ; 
 for that, though it may be a saving 
 of expense, yet where property 
 
 is to be brought to sale, to pay 
 creditors, &c. great mischief is 
 occasioned by it. 
 
 (3) leVcs. 166.; butsee6Ves.4. 
 
 (4) 6G. 4. c. 16. s. 102. 
 
 (5) Ex parte Ward, Sel. Ca. Ch. 
 46. 
 
 (6) Owen V. Foidkes, 6 Ves. 630. 
 (note). Ex parte James, 8 Ves. 
 337. Ex parte Limvood. Ex parte 
 Churchill, cited ibid. 545. Ex parte 
 Bemictt, 10 Ves. 381.
 
 Sect, 1.] OF THE SOLICITOR. 8G7 
 
 gift from his client while the relation subsists, though the lights 
 transaction may be, not only free from fraud, but the most ^"^ "" 
 
 moral in its nature. (1) But after a suit is eiitirehj at an 
 
 end^ a client may then give his attorney a reward for ser- 
 vices over and above his legal fees. (2) 
 
 In suing out a commission against a bankrupt, the soli- 
 citor must be careful to observe the rules and regulations 
 which have been at different times laid down by the Court 
 for his conduct in this respect (3) ; otherwise, the commis- 
 sion will not only be superseded, but he himself will be 
 made to pay the costs. By a general order of Lord Rules to 
 
 Loughborough (4), it is provided, (as we have before ^? pbserv- . 
 
 6cl in issii- 
 seen (5) ) that after the expiration of fourteen days from the ing acom- 
 
 date of a town commission, and twenty-eight days in the "fission. 
 case of a country commission, the commission is super- 
 sedable for want of prosecution ; and that the application 
 for a new commission, which shall (in the course of the 
 following day) be first made by any other attorney or soli- 
 citor than the one at whose instance the supersedable com- 
 mission was issued, shall be preferred to an application for 
 the same purpose by the attorney, who sued out such su- 
 persedable commission. But by a subsequent order (6), 
 any solicitor, who acts merely as agejit for the attorney 
 in suing out the first commission, is not prevented from 
 applying for a new commission as age7it for a different 
 attorney, provided he indorses upon the affidavit his own 
 name, and the name and place of residence of the person 
 for whom he acts as agent in suing out such second com- 
 mission. And by the same order, whenever any attorney 
 sues out a commission as agent for another, he is required 
 to make a similar indorsement. 
 
 An attorney or solicitor cannot, as has been formerly Cannot be 
 observed (7), be made a bankrupt himself in his profes- u'"'l^ 
 
 (1 ) 2 Atk. 298. Cas. temp. Tal- (3) See ante, Ch. V. Sect. 1. J^"" ''^""'■" 
 bot, il5. 2 Ves. .549. 4Bro. 350. (4) 26th June, 1795. ^^^' 
 
 2 Ves.jun. 199.; and see 7 Ves. 584. (5) Ante, p. 120. 
 
 3 Anstr. 769. (6) 5th November, 1 793. 
 
 (2) 2 Ves. 260. 2 At. 30. (7) Ante, p. 23. 
 
 3 K 2
 
 868 OF THE SOLICITOR. [Ch. 23. 
 
 Rights sional capacity ; though he is liable (like any other person) 
 
 and du- ^ . . ^ . i .,.1 • 1 1 
 
 flgg to a commission ot bankruptcy, ir lie acts in the character 
 
 of a scrivener, or follows any other calling which the bank- 
 rupt law has denominated a trading. 
 As to the The solicitor to the commission is, in general, the de- 
 tion of positary of the commission and the proceedings ; and he is 
 the pro- bound to keep them in safe custody, until required by the 
 *= ■ assignees, or an order of the Lord Chancellor, to de- 
 liver them up to any other person ; for (we have already 
 seen(l)) he has no lien upon them, and if he refuses 
 to produce them when legally required, costs will always 
 be given against him. (2) But it seems, that he has a 
 lien upon the proceedings under a commission which has 
 been superseded, and cannot be compelled to deliver them 
 up until his costs are paid. (3) If he is served with a sub- 
 jpcena duces tecum to produce the [proceedings in a collateral 
 action, the better opinion seems to be that he is bound to 
 do so (4), and that this is an obligation incumbent upon 
 him as a public duty (5); though Lord Kenyon in one 
 case held the contrary, saying that the proceedings be- 
 longed not to the solicitor but to the assignees. (6) 
 Conflicting opinions have, also, been expressed by dif- 
 ferent judges upon his liability to produce them when the 
 production might tend to the detrimerd of his clients the 
 assignees — Lord Chief Justice Abbott holding, that he was 
 not compelled to do so (7) — whilst Lord GifFord, on the 
 contrary, decided on one occasion that he was bound to 
 produce certain books of the bankrupt, in order that entries 
 relating to the matters in issue, but to them alone, might 
 be read upon the trial — notwithstanding there was in this 
 case a possibility of the assignees being prejudiced by the 
 
 (1) Ante, p. 865. (4) Cohen v. Templar, 2 Star. 
 
 (2) Ex parte Bullcn, 1 Rose, 134. 260. per Holroyd J. 
 
 Ex parte Hardy, ibid. 395. Ex (5) Pearson v. Fletcher, 5Esp. 
 
 parte Tillcij, 2 Rose, 83. ; and see 90. per Lord EUenborough. 
 
 Ex parte Sandisnn, 1 Rose, 275. (6) Bateson v. HartsM, 4 Esp. 
 
 (5) Ex parte Shaw, 1 G. & J. 45. 
 
 124. (7) Laing v. Barclay. 3 Star.38.
 
 Sect. 1.] OF THE SOLICITOR. 869 
 
 result of the verdict. ( 1 ) The soHcitor, however, ought at all Rights 
 events (when served with a suhpcena duces tecum) to be ready ^^^^^ 
 
 to produce the proceedings, if ordered to do so by the Court — 
 
 though it seems a question for the judge, whether he ought 
 to be compelled ; — for in case of disobedience without special 
 cause, he will be liable to an attachment, or an action for 
 damages. (2) 
 
 With respect to other papers and documents deposited As to pro- 
 by a bankrupt with his solicitor, and which do not form ^^^^^^ ^ 
 any part of the proceedings under the commission — it has pers depo- 
 been held, that a solicitor is bound to produce such papers f^^^? ^ 
 (for the purposes for which he received them) on behalf 
 of the assignees, though he is not employed by them in the 
 cause; but he is not bound to deliver them up, or even 
 to produce them in uht/ other business, without payment of 
 his bill. (3) And where a solicitor has no lien on such 
 papeis deposited with him by a bankrupt, the Lord Chan- 
 cellor will, on petition, order them to be delivered up to 
 the assignees (if necessary) for the administration of the 
 estate ; though such an application was refused, v^here the 
 assignees wanted them for the purpose of instituting criminal 
 proceedings against the bankrupt. (4) A solicitor, also, 
 who is not the bankrupt's solicitor, but who has in his 
 custody a deed executed by the bankrupt, is bound to pro- 
 duce it if required by the commissioners, like any other 
 witness upon a suhpcena duces tecum — without prejudice, 
 liowever, to any legal objection he may have to disclose 
 circumstances relating to the deed, on the ground of con- 
 fidenlial communication. (5) 
 
 An attorney is, in general, privileged from arrest by 
 process issuing out of his own Court; — and if arrested, 
 may move to be discharged on common bail. (6) But if 
 
 (1) Hawkins v. Howard, 1 R3'an (4) Ex parte Lines, Buck, 337. 
 & M. 64. ; and see Corsen v. JDu- (5) Ex parte Treacher, Buck, 
 bois, 1 Holt, 239. ; and ante, p. 790. 17. ; and see 1 Holt's Rep. 239. 
 
 (2) 1 Holt, 239. iPhill. 471. (6) 1 Mod. 10. 2 Salk, 544. 
 
 (3) Ross V. Laughton, 1 Ves. & 1 Wils. 298. 
 B. 349. 
 
 3 K 3
 
 870 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Rights 
 and du- 
 ties. 
 
 When 
 privileged 
 irom ar- 
 rest. 
 
 When ex- 
 pected to 
 explain 
 his con- 
 duct. 
 
 Cannot 
 execute 
 the bond 
 to the 
 Chancel- 
 lor for an 
 infant. 
 
 Must pay 
 commis- 
 sioners' 
 fees. 
 
 When 
 liable to 
 the mes- 
 senger. 
 
 he is arrested by process out of a different Court, he must 
 then find special bail, and plead his privilege in abate- 
 ment. (1) And where a solicitor was arrested by a clerk hi 
 Court, and applied to the Lord Chancellor for an in- 
 junction to stay the proceedings, and for an order that the 
 bail-bond should be cancelled, — Lord Eldon said, that by 
 granting such a motion, he should take away the autho- 
 rity and privileges of the ancient officers of the Court. (2) 
 But a solicitor, as well in bankruptcy as in the course of 
 other judicial proceedings, is privileged from arrest in 
 going to or returning from the Courj, to which his duty to 
 his client calls him; therefore, where a solicitor was ar- 
 rested on his way to Lincoln's Inn Hall to attend the 
 hearing of a petition in the Lord Chancellor's paper, he 
 was ordered to be (3) discharged on motion — Loi'd Eldon 
 upon this occasion examining the party himself, and the 
 oath being administered by the registrar. 
 
 When a commission is suspicious in the circumstances 
 of the issuing of it, the Lord Chancellor will expect the 
 solicitor to give an account of his conduct, and to explain 
 those circumstances. (4) 
 
 As no person but the petitioning creditor himself can 
 enter into the bond to the Lord Chancellor upon issuing 
 the commission, a solicitor was therefore refused per- 
 mission to give the bond for a petitioning creditor who was 
 an irifant. (5) 
 
 The solicitor is bound to pay the fees of the commis- 
 sioners if they are summoned to attend, whether there be 
 assets sufficient for that ])urpose or not ; and if he refuse, 
 the commissioners may petition against him. (6) So, he is 
 liable to the messenger for his costs, and for any damages 
 sustained by him when the commission is superseded for 
 
 (1) 2 Salk. 544. 2 Str. 864. 
 2 Ld. R. 1567. 1 Wiis. 506. 
 
 (2) Smith V. Wainiuright, Sitting 
 after Michaelmas term, 1826. 
 
 (.") Castles case, 16 Ves. 412. 
 The application in such a case 
 must be entitled in the banhriiplcy. 
 
 (4) Ex parte Stevens, 6 Ves. 2. 
 19 Vcs. 5.39. 
 
 (5) Ex parte Barrow, 3 Ves. 554. 
 
 (6) Ex parte Griffith, 2 Rose, 
 ."42. 1 Mad. 36.
 
 Sect. 2.] OF THE SOLICITOR. 871 
 
 fi'aud, and the petitioning creditor has absconded. ( 1 ) In like Rights 
 manner, where the solicitor was employed by the petition- ?" "' 
 
 ing creditor to work the commission for a sum certain, and 
 had received a great part of that sum, he was held liable 
 to the payment of the messenger's bill. (2) But, in general, 
 the solicitor is not to be regarded as a principal, though 
 he is the medium through which it is convenient that the 
 messenger should receive his fees (3) ; for the petitioning 
 creditor, and not the solicitor, is liable to the messenger in 
 the first instance, unless t^ie solicitor has made himself re- 
 sponsible by special agreement. (4<) 
 
 The solicitor, employed to present a petition to stay the 
 bankrupt's certificate, ought not to withdraw it withou 
 leave of the Court. (5) 
 
 Neither of the parties in an action at law can change his Attorney 
 attorney without leave of the Court, or the order of a c^n^ot be^ 
 Judge for that purpose ; and such leave will not be granted changed 
 until the party applying for it has actually paid, or under- ^^'^^out 
 taken to pay, the attorney's bill as taxed by the proper the Court, 
 officer. (6) But a party may change his solicitor in the 
 Court of Chancery without a previous order of Court. 
 The solicitor will, however, in such case have a lien for 
 his costs upon the papers in his possession, though he 
 cannot (except by retaining such papers) prevent the pro- 
 gress of the cause till he be satisfied. (7) 
 
 Section II. 
 Of his Lien for Costs. 
 
 Though an attorney or solicitor has not, as we have On what 
 
 already seen(.s), any lien upon the commission or the pro- his lien 
 
 QttHcncs* 
 
 (1) Ex partelZarfo^, 9Ves. 109, 2 Bl. 152.5. Doug. 217.; and see 
 12 Ves. 549, 2 Ves, 162, Langley v. Stapleton, 
 
 (2) Hartop V. Juc/ces, 2 M, & S, 1 Barnes, 35. 15 Ves. 1 96, 
 
 438. (7) Merryweather v. Mcllisli, 
 
 (3) 2M. &S.438. 13 Ves. 161, Tivort V, Bayrell^ 
 
 (4) Hart V. White, 1 Holt, 376. ibid. 195.; and see 1 Sch, & Lef. 
 Hart V. Biggs, ibid, 245. 315. 2 Ves,112. 3Atk,727, 14Ves. 
 
 (5) Ex parte Gihson, 6 Ves. 5. 272. 
 
 (6) 7 Mod, 50. Say, Rep, 218, (8) Ante, 8fi5, 86S, 
 
 3 K 4
 
 872 
 
 OF THE SOLICITOR. 
 
 [Ch.23. 
 
 Lien. 
 
 Goes to 
 personal 
 repre- 
 sentative. 
 
 How far 
 lien on 
 proceed- 
 ings in a 
 suit ex- 
 tends. 
 
 Lien of an 
 agent up- 
 on papers. 
 
 ceedings under it (whilst the commission is in existence) 
 for his costs, yet he has a general lien upon all ofhej' deeds 
 and papers of the bankrupt, which came into his hands 
 before the bankruptcy — but not for those received offer the 
 bankruptcy ; — and he has the same lien, also, against the 
 assignees as against the bankrupt. (1) This lien is held 
 to attach, pot only in respect of his bill for business done 
 before his bankruptcy, but for the costs of an action 
 brought by him against the bankrupt (even subsequently 
 to the issuing of the commission) in order to recover the 
 amount of his bill. (2) And if the attorney dies, his lien 
 is not extinguished, but goes to his personal representa- 
 tive; for the Court will not order his executor to deliver 
 up the deeds or papers, until security has been given 
 that his lien will be discharged. (3) 
 
 But the lien of an attorney (on papers and proceedings 
 in an action or suit in which his client is concerned) only 
 extends to the amount of his costs and charges in that 
 particular action or suit, and not to any demand he may 
 have against his client in respect of ot/ier actions or suits. (4) 
 And if papers are deposited with an attorney for a par- 
 ticular purpose, then they are exonerated from his general 
 lien ; but the purpose of the deposit must appear by special 
 agreement. (5) 
 
 So, the agent of a country attorney (who becomes bank- 
 rupt) has a lien upon papers in his hands for the amount 
 of his agency fees, — which lien, it seems, is not defeated by 
 his proving his debt under the commission. (6) He has not, 
 however, a ge7ieral Wen upon the papers in a cause, but only 
 a special lien for the amount of money actually due to him 
 
 (1) Mitchell V. Oldfield, 4 T. R. 
 123. Ex parte Bubh, vVin. Ah. 
 74. Ex parte Bell, 1. C. B. L. 429. 
 Ex parte Femhertan, IsVes. 282. 
 Stevenson v. Blakelock, 1 M. & S. 
 535. Ex parte Lee, 2Ves. jun. 
 285. Park v. Carter, I C. B. L. 
 285. 
 
 (2) Lambert v. Buclnnaster, 2 B. 
 &C. 616. 
 
 (5) Redfearn v. Soiverh^,\^viimst. 
 84. 1 Wils. 96. 
 
 (4) Laim V. Church, 4 Mad. 591. 
 Bray v. Hinc, 6 Pri. 203. 
 
 (5) Ex parte Stirling, 1 6 Ves. 
 258. 
 
 (6) Ex parte Steele, 16 Ves. 164.
 
 873 
 
 Sect. 2.] OF THE SOLICITOR. 
 
 from the country attorney for business done in that par- j^^^^^^ 
 
 ticular cause, and — as against the client or party in the 
 
 cause — not beyond the extent also of the balance due from 
 the client to the country attorney. (1) 
 
 If the attorney take any security for payment of his bill, wj^^t a 
 such as a bond or promissory note — or enter into any spe- waiver of 
 cial contract or agreement for the payment of it, — his lien, ^^"" 
 in either of these cases, is held to be abandoned (2) ; for it 
 is a maxim adopted from the civil law, that a party entitled 
 to a lien, by taking security for his demand, waives that 
 right — the special contract in this instance superseding 
 the implied one. And where a solicitor had obtained an 
 order to have his bill taxed, and to prove for the amount, 
 he was held by the Vice-Chancellor to have waived his 
 lien upon papers belonging to the bankrupt. (3) But where 
 an attorney had taken acceptances for the amount of his 
 balance before a lease came to his hands, and some of which 
 acceptances had also befoi'e then been dishonoured, and 
 one taken up by himself, — the Court of King's Bench dis- 
 tinguished this case from that of Co'well v. Simpsoji, and 
 held that his lien was not extinguished. (4) 
 
 The lien of an attorney, on deeds and papers in his tj^ . ^ c 
 possession, is confined to the deeds strictly belonging to the lien on 
 his client — except, indeed, those which he has himself pre- ^^^^s and 
 pared. (5) Therefore, if a tenant for life put the deeds 
 of the life estate into his attorney's hands, and dies, — the 
 attorney has no lien upon them as against the remainder- 
 man. (6) 
 
 So, where deeds not prepared by an attorney come by iy ,• 
 accident into his hands (even through the medium of his against 
 own client), the attorney has not a lien upon them, as third per- 
 
 . deeds not 
 
 (1) Brat/ V, Hine, 6 Pn. 205. but see Ex parte Steele, leVes. prepared 
 Anon. 2 Dick. 802. 15 Ves. 297. 16-!. Ex ])ane Hunter, Buc^, 5 56. by him ; 
 Chapman v. Clarice, ibid. Farewell (4) Stevenson v. Blakelock, 1 M. 
 
 V. Coker, 2 P. Wnis. 460. & S. 555. 
 
 (2) Cowell V. Simpson, 16 Ves. {5)]Hollis v. Claridge,4Ta\mt. 807. 
 275.; and see 1 Turn. 91. per Lord (6) Ex parte Nesbitt, 2Sch. & 
 Kldon. Let'. 279.; and see Hoare v. Parker, 
 
 (3) Exparteift/-«%,Buckj551.; 2T. R. 376. Bishojj v. Huggins, 
 
 -2 Barnes, 58.
 
 874? 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Lien. 
 
 nor on a 
 will, nor 
 as stew- 
 ard of a 
 manor; 
 
 on money 
 recovered 
 in an 
 action ; 
 
 on an es- 
 tate re- 
 covered. 
 
 Money in 
 hands of 
 the sheriff. 
 
 Money 
 awarded 
 by an ar- 
 bitrator. 
 
 against the other party to the deeds, for the amount of his 
 demand against his client. (1) Neither has an attorney any 
 lien upon the mil of his client (2), nor upon documents, 
 which he obtained possession of, not in his character of 
 attorney, but in that of steward of a manor. (3) 
 
 The lien of an attorney attaches upon money in his 
 hands belonging to his client, as well as to deeds and 
 papers. Therefore, if money be recovered in an action, 
 he may stop it in transitu, or apply to the Court to prevent 
 its being paid over until his own demand is satisfied (4) — 
 upon the principle (as Lord Kenyon formerly observed) 
 that the party should not run away with the fruits of the 
 cause, without satisfying the legal demands of his attorney, 
 by whose industry, and in many instances at whose ex- 
 pense, those fruits are obtained. (5) Therefore, if a de- 
 fendant's attorney pay to the plaintiff the debt and costs 
 recovered, after notice from the plaintiff's attorney not to 
 do so till his bill has been first satisfied, the former is 
 liable to pay over again to the latter the amount of his 
 lien on such debt and costs. (6) So, if a solicitor pro- 
 secute to a decree, he has a lien on an estate recovered, as 
 against the person recovering, for his bill ; but not as against 
 the estate in the hands of the heir, unless it should be ne- 
 cessary to have the suit revived : and, in that case, the lien 
 will revive too. (7) An attorney has also a lien for his bill 
 upon money levied under an execution upon a judg- 
 ment recovered against his client ; and, on motion, the 
 Court will grant a rule upon the sheriff to pay it over to 
 him, notwithstanding a docquet has been struck against the 
 plaintiff on an act of bankruptcy since the judgment. (8) 
 So, an attorney has a lien upon a sum awarded in favour of 
 his client (9), as well as if it was recovered by judgment. 
 
 ( 1 ) Esdaile v. Oxenham, 5 B. & 
 C. 225. 
 
 (2) Georges V. Georges, IsVes. 
 294. Belch v. Symes, 1 Turn. 87. 
 
 (.") Cha,mpcrnoun\. Scott, 6 Mad. 
 95. 
 
 (4) Tidd's Prac. 329 
 M5. 
 
 (5) Bead v. Duj)ppr, 6T.R.501. 
 1 Taunt. 341. 
 
 (6) 6T.R.561. 
 
 (7) Ambl. 102. 
 
 (8) Griffin v. Eyics, 1 H.B. 122 
 
 (9) Ormcrodv. Talc, lEast,464.; 
 Barnes, and sec Gijf'vrd v. Gijjhrd, Forest's 
 
 Rep. 109. "
 
 Sect. 2.] OF THE SOLICITOR. 875 
 
 Where costs were ordered to be paid by a petitioning "' 
 
 creditor to a bankrupt upoil the commission being super- Costs or- 
 
 seded, the bankrupt's solicitor was held to have a lien upon ^^red to 
 1 r I f T 1 . . , be paid. 
 
 the costs tor the expense or supersedmg tlie commission (1) ; 
 
 and, indeed, where any costs are ordered to be paid to a 
 
 party to a petition, the solicitor of the party has a lien upon 
 
 those costs for his own charges, although there be no fund 
 
 in Court to pay them ; neither can the client, in such a case, 
 
 release the benefit of the order to the prejudice of the 
 
 solicitor. (2) But it has been determined, that his lien on 
 
 Si fund decreed to his client is (like his lien upon papers in 
 
 a cause) not a general lien ; and that he can only claim to 
 
 be reimbursed out of such fund the costs in that particular 
 
 suit, and not his demand for costs incurred in other 
 
 suits. (3) 
 
 So an agent in London for a country attorney has only a Agent's 
 
 lien on the damages and costs recovered in an action, to , " "" 
 1 p 1 • 1 I • -1 -1 damages 
 
 the amount or what is due to him as agent in tiie particular and costs. 
 
 cause, and not to the extent of what would have been the 
 
 amount of the country attorney's costs. (4) 
 
 Where a solicitor, however, declines to act any further When 
 for a client, on the ground of the refusal of the latter to tiecHn"^ 
 follow his advice, he has, in this case, no lien for his costs to act. 
 upon a fund in Court ; for whatever may be his reasons 
 for declining to proceed, a solicitor can only claim a lien 
 on a fund of this description, when he carries the business 
 through to a hearing. (5) 
 
 In deducting or setting off the costs, or the damages and Lien in 
 costs, in one action against those in another, there is some ^'^"'"S on 
 
 . • r \ • costs Ul 
 
 difference in the practice of the courts as to the recognition different 
 of the lien of the attorney. In the Common Pleas it is actions, 
 holden, that the lien of the attorney is subject to, and 
 
 (1) Ex parte Castle, 15 Yes. 539. (4) White v. Rot/al E.vchange 
 
 (2) Exparte iiAorfe*, 15Ves.542. Assurance, 1 Bing. 20. Ward v. 
 Ex parte Bryant, 2 Rose, 237. Kepple, 15 Ves. 297. Moody v. 
 2 Ves. 25. Spencer, 2 Dow. & R. 6. 
 
 (3) Laun V. Churcti, 4 Mad. 391. (5) Cress lucll v. Byron, 14 Ves. 
 
 271.
 
 876 O' THE SOLICITOR. [Ch. 23. 
 
 Lien. therefore ought not to be permitted to interfere'with, any 
 
 equitable arrangement that may be directed between the 
 parties in the suit. ( 1 ) Lord Eldon, it seems, when Chief 
 Justice of the Common Pleas, did not approve of this 
 practice, — saying, that in the Court of Chancery he never 
 knev/ the idea entertained of arranging the funds, till the 
 respective attornies were paid their costs (2) ; though after- 
 wards, it appears, he must have altered his opinion in this 
 respect, since it has been subsequently decided by him in 
 equity, that costs are arranged according to the equities of 
 the parties, and that the solicitor's lien is only upon the 
 balance under that arrangement. (3) The practice, how- 
 ever, of the Common Pleas in this particular, has been 
 since supported by subsequent cases in the same Court, 
 by which the right of set-off between the parties is pre- 
 ferred to the lien of the attorney. (4) In the King's 
 Bench this right of set-off is not permitted until the bill 
 of the attorney has been discharged ; that Court considering, 
 that an attorney has a lien for his fees in the cause upon 
 the costs and damages recovered — and that such a set-off, 
 therefore, cannot be enforced adversely to his lien. (5) And 
 this practice appears to accord also with that in the Ex- 
 chequer (6) ; where it has been holden that a plaintiff, by 
 settling the action without the knowledge of his attorney, 
 does not deprive the attorney of his lien for costs, but that 
 he may nevertheless go on to judgment and take out 
 execution for nominal damages and costs. (7) But where 
 the defendant, not having had notice to the contrary, com- 
 promised the debt and costs with the plaintiff before his 
 attorney had been paid, the Court of King s Bench would 
 
 (1) Schoole V. Noble, i H.B. 2-5. (5) Middleton v. Hill, 1 M.&S. 
 Nunez v. Modigliam, ibid. 217.; 240. Mitchell \. Oldfield, 4 T. R. 
 and see Hullock, 472. and the 125. Randall v. Fuller, 6 T. R. 
 cases there cited. 456. Morland v. Rashleigh, 2 H. 
 
 (2) i7<2//v. Oflfj/, 2B.&P. 28. B. 441. note. Glaister v. Hewer, 
 
 (3) 15Ves. 75. 79. Ex parte 8 T. R. 69. 
 
 Rhodes, 15 Ves. 541,542. (6) Sinifh v. Brocklesby, 1 Anst. 
 
 (4) Emden v. Darley, 1 New. 61. Gahhool\. Chaiitor,\\i\A.21^. 
 Rep, 22. Rroivn v., Sayer, 4 Taunt. (7) Cole v. Bennett, 6 Pri. 15. 
 •320. : and see 2 N. R. 102.
 
 Sect. 3.] OF THE SOLICITOR. 877 
 
 not oblige the defendant to pay the plaintiff's attorney the -^^^"' 
 amount of his costs. (1) 
 
 With respect to interlocutory costs, even in the King's Interlocu- 
 Bench, the attorney's lien is there held only to attach upon ^^^^ *^°®'^* 
 the balance of the costs accruing in the same cause, which 
 are ultimatelrj to be paid over to the one or the other 
 party in the cause ; and that the cause is not to be split, 
 so as to give the attorney of either party a lien upon such 
 interlocutory costs, when his client might finally be bound 
 to pay costs to a greater amount to the adverse party. (2) 
 
 And the lien of the attorney for his costs is held in no No lien on 
 case to interfere with the personal liberty of the other '^"f'^"- 
 party to the suit, nor to extend to a lien on the defendant's body; 
 body (3) ; as, where a plaintiff after judgment settled the 
 action with the defendant, and employed a new attor- 
 ney to enter up satisfaction on the record, the defendant 
 was considered entitled to be discharged out of custody, 
 though the lien of the plaintiff's attorney for his costs had 
 not been satisfied. (4) 
 
 Whenever an attorney calls on the Court to interfere nor with- 
 
 summarily aijainst a party, who has deprived him of his ^"j" ^ ''^' 
 J r> r J ' r ^ gular au- 
 
 costs by entering satisfaction on record, he must make it thority. 
 distinctly appear, that every thing on his part has been 
 rightly done. If he has not, therefore, a regular authority 
 from the plaintiff for the commencement of an action, the 
 Court will not interfere in his behalf, by ordering the entry 
 of satisfaction to be vacated. (5) 
 
 Section III. 
 
 Of the Taxation of the Solicitor's Bill of Costs, a7id his 
 remedy for the Payment of it. 
 
 It has been before observed, that the costs of pro- How costs 
 secuting the commission up to the choice of assignees are ^^^ *» be 
 
 td.X6Cla 
 
 (1) Doug. 238. (4) ilfarr V. 5'w?VA, 4B.&-A.466. 
 
 (2) Howell V. Harding, 8 East, Martin v. Francis, 2 B. & A. 402. 
 362. (5) Abbott V. Rice, 3 Bing. 154. 
 
 (3) Pyne v. Erie, 8 T. R. 407.
 
 878 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Taxation 
 of bill. 
 
 Where no 
 commis- 
 sion siib- 
 sistin;;. 
 
 Where, of 
 course, to 
 order tax- 
 ation. 
 
 to be taxed and ascertained by the commissioners at the 
 meeting for that purpose ; and that if any party is dissatis- 
 fied with their taxation, the bill may, upon application to 
 the Chancellor, and reasonable objection shewn, be re- 
 ferred to a Master to be taxed (1) — and this even though 
 the amount of the bill has been allowed in die accounts of 
 the assignees. (2) The new enactment (3) has been also 
 noticed, by which all subsequent costs are now made tax- 
 able by the commissioners in the first instance, with the 
 same reservation of the right of any party to refer the tax- 
 ation afterwards to a Master. (4) 
 
 Some doubts were formerly entertained, whether the 
 Lord Chancellor can order the taxation of a bill in bank- 
 ruptcy, where there is no commission subsisting — as in a 
 case, where the application is made to tax a bill after the com- 
 mission is superseded. (5) But it seems, that the general 
 jurisdiction of the Lord Chancellor over solicitors, as offi- 
 cers of the Court, will give him sufficient authority to make 
 any order that he thinks fit respecting the taxation of a 
 solicitor's bill. (6) And where a docket has been struck, 
 though no commission is sealed, the Lord Chancellor has, 
 upon petition, referred the bill to be taxed. (7) 
 
 Where charges in a solicitor's bill up to the choice of 
 assignees are prima facie exorbitant, it is of course to refer 
 it to a Master to tax, — notwithstanding it may have 
 been paid, and the assignee may be dead who paid it. (8) 
 The order for taxing such a bill may be drawn up, even 
 upon an ex •parte application, and if the solicitor wishes to 
 modify or discharge the order, he must apply to the Court 
 for that purpose. (9) Any creditor, also, may apply for 
 the order, if there has been neglect on the part of the 
 assignees, but not otherwise. (10) 
 
 49. 
 
 (1) Ante, p. 845. 
 
 (2) Ex parte Gregson, 3 Matl. 
 
 (3) Section 14. 
 
 (4) Ante, p. 847, 
 
 (5) Ex parte Parker, 1 C. B. L. 
 12. Ex parte J/rfr/'f/gf, ibid. 
 
 (6) Ex parte Karl of Uxbndgc, 
 
 6 Ves. 425. Ex parte Arroivsmith, 
 15 Ves. 124. 
 
 (7) Ex parte Smith, 5 Ves. 706. 
 
 (8) Ex parte Neale, Buck, 111. 
 Ex parte Emerij, ibid. 422. 
 
 (9) Ex parte Hewitt, Buck, 588. 
 
 (10) Ex parte Walker, l(f.&J. 
 95,
 
 Sect. 3.] OF THE SOLICITOR. 879 
 
 In case of a deficiency of assets, the petitioning ere- ^«^«*«om 
 
 ditor (we have seen) and not the assignees, is personally 
 
 liable to the solicitor for his bill up to the choice of as- Who 
 signees(l); though his remedy to enforce the payment solictor 
 of it seems rather to be by an action at law than by petition when no 
 lo the Chancellor. (2) ^''^^'• 
 
 Where the solicitor (employed by the petitioning creditor How 
 to sue out the commission) is continued by the assignees, t'ound to 
 and, having delivered his bill including all charges both ateatrene- 
 before and after the choice, receives a certain sum on r^,! pay- 
 account of his bill generally from the assignees, he is 
 bound to appropriate it (in his account with the peti- 
 tioning creditor) in reduction of his claims upon him for 
 his costs before the choice of assignees. (3) Where the 
 amount of such costs, therefore, is covered by the sum so 
 received, it cannot be set off by the solicitor against a 
 debt due from him to the petitioning creditor on his own 
 account. 
 
 A solicitor having persuaded a petitioning creditor to When or- 
 
 strike a docket, upon the solicitor undertaking to prove der refused 
 , PIT. 1 1 ... to tax bill, 
 
 the act oi bankruptcy, and guarantee the petitioning 
 
 ci'editor from the expenses of issuing the commission, 
 
 an order was refused for taxing the solicitor's bill ; for 
 
 both he and the petitioning creditor were, in this case, 
 
 considered to be guilty of a contempt of the Great 
 
 Seal. (4) 
 
 Where a solicitor carries on suits in equity for an as- When the 
 
 signee, without the authority of the majority in value of ""■, 
 
 the bankrupt's creditors present at a meeting summoned estate not 
 
 for that purpose, he has no claim against the estate of the y^^ *° 
 
 bankrupt for his bill in respect of such suits, though he has 
 
 a personal remedy against the assignee who employed 
 
 (1) Ex parte Haynes, 1 G. & J. (3) Philips v. Dicas, 15 East, 
 35. 248. 
 
 (2) See ante, p. 846. (4) Ex parte Wilson, Buck, 506.
 
 880 OF THE SOLICITOR. [Ch. 23. 
 
 Taxation him. (1) And the Court will not countenance the employ- 
 '^•^J^f__ ment of more than one solicitor under the commission, so 
 as to increase the charge to the bankrupt's estate. There- 
 fore, where a soHcitor (who was not the solicitor to the com- 
 mission) was employed by joint creditors under a separate 
 commission, to conduct examinations, &c. before the com- 
 missioners, the Lord Chancellor refused to make any order 
 for the payment of his charge out of the joint effects. (2) 
 Where Where a solicitor takes out a commission against a 
 
 solicitor bankrupt upon a debt due to himself for costs, any creditor 
 sues out a ^ ^ j 
 
 commis- in this case may have the bill of costs taxed, if the bank- 
 sion on his ^.^pj. himself at the time of his bankruptcy was not con- 
 
 eluded. (3) 
 As to costs A solicitor, who has been engaged in carrying on legal 
 
 inciured proceedings for the bankrupt, cannot charge his estate 
 subsequent ^.,, . ,, ,.. -, 
 
 to the with the costs nicurred subsequent to the commission ot 
 
 bank- the act of bankruptcy. A debt, therefore, composed of 
 
 such costs is not a good petitioning creditor's debt. (4f 
 
 Bill cannot With respect to other matters, not occurring in bank- 
 be taxed ruptcy, it is a matter of course to order the bill of an attor- 
 upon the ^ "^ ,. . 
 
 trial, or ney or solicitor to be taxed (under the provisions of the 
 
 after a 2 G. 2. c. 23.) before a judgment is obtained against the 
 judgment , ' , • , • , - , , 7 
 
 recovered pai'ty to be charged with it; which order must be person- 
 
 on it; ally served upon the solicitor, unless a special order is ob- 
 tained to dispense with such service. But it is a settled 
 point, that the bill cannot be taxed at the trial of an action 
 brought upon it, or after verdict ,• for the officer of the 
 Court is considered to be the best judge of the reason- 
 ableness of the charges, the Court itself) during the pro- 
 gress of a trial) being quite incompetent to determine sa- 
 tisfactorily upon the different items. Therefore, if a party, 
 who may have the bill previously taxed, waive that ad- 
 
 (1) Ex parte Whitchurch, 1 Atk. (3) Ex parte Prideaux, 1 G. & 
 210. J. 28. 
 
 (2) Ex parte Longman, 1 Rose, (4) Ex parte Miller, Buck, 286. 
 303.
 
 Sect. 3.] OF THE SOLICITOR. 881 
 
 vantage, and let the cause go to a jury, eitlier by pleading, Taxation 
 
 or on a judgment by default, he cannot afterwards resort 
 
 to the taxation by the officer of the Court. 
 
 Where, also, an account has been settled between an at- "o^' ^^^^'^ 
 1 , . T X r^ -n • IP an account 
 
 torney and his chent, the Court will not, in general, reier j^ settled. 
 
 a bill for taxation, unless error, fraud, or other circumstances 
 be disclosed by affidavit (1); in which case, neither pay- 
 ment, nor a release, nor a judgment for the money due, will 
 preclude the Court from having the bill taxed. (2) But 
 W/here a bond was given lor the amount of an attorney's 
 bill five years before, and all the vouchers were delivered 
 up (3) — or where a bill has been settled and paid several 
 years, and a receipt in full given (4<), — the Court, in each 
 of these cases (there being no evidence of fraud) refused to 
 refer the bill to be taxed. Where, however, the circum- 
 stances are suspicious, and the client has inadvertently 
 given a bond or mortgage to secure the payment of what 
 was charged to be due to him on account of fees, &c., 
 courts of equity have in some cases relieved the client, 
 and ordered the bill to be taxed (5) ; and this even after 
 the lapse of a considerable number of years. (6) So the 
 settlement of a solicitor's bill pending a cause is not, as be- 
 tween other persons, conclusive; for while the suit is pend- 
 ing, the client is in a degree under the control of the solicitor; 
 and such a settlement does not therefore bar a taxation. (7) 
 
 If the whole of an attorney's bill be for conveyancing What 
 business, it cannot be taxed (8) ; but if the bill be in part itam tax- 
 for business done in court, and the rest for business of an- 
 
 (1) Hooper v. Till, Doug. 198. (4) Pistor v. Dunbar, 1 Anstr. 
 Clarke v. Taylor, Cas, Pr. C. P. 186. 
 
 118. Prac.Reg. 58. Barnes, 124. (5) Per Lord Hardwicke, 2 Atk. 
 
 Longstajfe V. Taylor, 14Ves. 262. 29,30. Per Lord Camden, 1 Dick. 
 
 Bennet v. Hart, Say. 325. Dra- 405. 14Ves. 265.; and see ante, 
 
 par's Company \. Davis, 2 Atk. 295. 727. 
 
 Hullock, 501. et seq. (6) Lewes v. Morgan, 5 Pri. 42. 
 
 (2) Say, 323. Doug. 199.; and (7) Crossley v. Parker, 1 Jac. & 
 see 2 Atk. 295. W. 460. ; and see ante, 866. 
 
 (3) March V. Carter, Cas. Prac. (8) Hillier v. James. Barnes, 41. 
 C.P.109. Prac. Reg. 57. B.N. P. 145. 
 
 3 L
 
 882 
 
 OF THE SOLICITOR. [Cll. 23. 
 
 Taxation other nature, {heiiohole bill then is liable to taxation (1), 
 ^{^^_ even though the smallest item be for business done in 
 court. (2) Charges, also, for holding the courts of a manor 
 by an attorney, as the steward of the Court, are charges for 
 business connected with his professional character, (like 
 those for conveyancing,) and are, therefore, taxable when 
 found in a bill containing other taxable items. (3) And 
 whenever an action is commenced in any court upon an 
 attorney's bill, that court (being thereby possessed of the 
 cause) has a power to refer such bill for taxation, al- 
 though no one item in it is for business transacted in 
 that particular court. (4) So, from what the Court of 
 King's Bench has intimated in a recent decision (5), it 
 seems, that any court has a paramount jurisdiction, 
 independent of the 2 G. 2. c. 23., to refer the bill of 
 any attorney or solicitor of that particular court to be 
 taxed. 
 
 If an attorney deliver two separate bills together, one 
 of which is for fees and disbursements in causes, and 
 the other for conveyancing, the Court in such a case has 
 ordered both bills to be taxed. (6) A bill, also, for business 
 done entirely at the quarter sessions (7), or in a criminal 
 suit in the Court of Great Sessions in Wales (8), will, upon 
 application, be referred to be taxed. And the charge for 
 preparing an affidavit of debt and getting it sworn (9) — the 
 preparing a warrant of attorney (10), even though it is 
 never (11) executed — and the suing out a dcdimus potes- 
 
 (1) 11 East, 28G. Anon. Doug. (6) Green v. Hassel, Say. Rep. 
 199. note. Margerum v. Saudi- 233. 
 
 ford, 3 Bro. 233. (7) Ex parte Williams, 4T. R. 
 
 (2) Wintcr\.Pmjne,(iT.R.45. 496. Clarke y. Donovan, 5T.R. 
 Ex parte PrichcU, 1 N, R. 266. 694. 1 Esp. 137. 
 
 2 B. & P. 343. per Lord Eldon. (8) Lloyd v. Maund, 1 Tidd, 
 
 (3) Luxmore \. Lethbndge, 5 B. 315. note. 
 
 &A. 898. (9) 6T.R.645. 
 
 (4) Evans v. Bevis, 2 Barnard, (lo) Wilson v. Gutheridgc, San- 
 182. Gregg's case, Salk. 89. {lom v. Bourne, 5 B. & C. 157. 
 contra. 4 Camp. 68. 
 
 (5) Wilson V. Gut/uridge, 5B. & (11) Wild v. Crauford, 2 Star. 
 C. 157. 538.
 
 Sect. 3.] OF THE SOLICITOR. 888 
 
 tatem ( 1 ), are each of them sufficient items to enable the Taxation 
 Court to refer the whole bill for taxation. An attorney's _____ 
 bill may likewise be taxed after his death, notwithstanding 
 the amount is then due to his executor. (2) 
 
 But a solicitor's bill of fees 'wholly made up of charges What not 
 for prosecuting an appeal from the Court of Chancery in ' " ' 
 Ireland to the House of Lords, was held by the Court of Ex- 
 chequer not capable of taxation — there being no criterion 
 by which their own officer could tax the bill, or any means 
 to which he could resort for assistance. (3) So, a charge for 
 preparing an affidavit of the petitioning creditor's debt and 
 bond to the Lord Chancellor, in order to obtain a com- 
 mission of bankruptcy, is not a taxable item in an at- 
 torney's bill within the 2 G. 2. c. 23. s. 23., as being a 
 charge either at law or in equity, where the affidavit has 
 not been sworn, nor a commission issued. (4-) For the same 
 reason, a solicitor's bill in respect of business transacted in 
 the affairs of a charitable foundation, though the office of 
 visitor is exercised by the Lord Chancellor, is not liable to 
 taxation ; for this also is considered not a proceeding either 
 in law or equity ; as it is not in the Court of Chancery, that 
 the visitatorial power is to be exercised. (5) 
 
 An attorney's bill, which is not signed by him, cannot be 
 taxed under the statute. (6) So, where a party agrees to 
 pay a solicitor's bill on a third person, he cannot apply to 
 have it taxed ; for the statute applies only to cases between 
 solicitor and client. (7) So, also, where the attorney makes 
 a special agreeme7it with his client to be paid a certain sion, 
 or at a certain rate, for his time and trouble, — it seems 
 doubtful whether, under these circumstances, the bill can 
 be referred to be taxed; in one case (8) of this kind the 
 Court said they could do nothing in it; while in another (9) 
 
 (1) 1 N. R. 266. (.<;) Ex parte Daim, 9 Ves. 547. 
 
 (2) Penson v. Johnson, 4 Taunt. (6) Cas. Prec. C. P. 60. 
 
 724. (7) Langford v. Nott, 1 Jac. & 
 
 (3) Williams v. Odell, 4 Pri. 279. W. 29 1 . 
 
 (4) Burton V. Chntlerton, 3 B. & (8) Anon. 2 Barnard, 164, 
 A. 486. (9) Anon. 2 Say. ,-'21. 
 
 3 L 2
 
 8vS4. 
 
 OF THE SOLICITOR. [Ch. 23. 
 
 Taxation it was holden, that the client should not be concluded by 
 
 ^fj^ any agreement of this description. 
 
 Bill of an The bill of an ageiit to a country attorney may be re- 
 
 jigent. ferred to be taxed, upon the country attorney bringing the 
 amount of the whole demand into court. (1) But the 
 application to tax it must be made by the country attorney, 
 and not by the client. (2) 
 
 Mode of If an attoi-ney refuse to deliver a bill signed to his 
 
 compel- client, the latter may compel him, by taking out a sum- 
 ling an at- ' . , "^ i -p i / 
 torneyto mons before a judge; and it ttie attorney (on service 
 
 deliver his ^^hereof) do not attend, an order will be made to deliver 
 ' it within a reasonable time. If he still neglect to deliver it, 
 
 the order should be made a rule of court ; after duly serving 
 which, and making affidavit of the sei'vice, the Court will, on 
 and have motion, grant an attachment. When the bill is delivered, 
 it taxed, ^j^g client may then apply for a judge's order to show 
 cause, why it should not be referred to the proper officer ; 
 upon which an order will be made, on the client's under- 
 taking to pay the attorney what shall appear to be due to 
 him upon such taxation. (3) But a client cannot have a 
 summons for the delivery of the bill, and for taxing it, 
 at the same time. (4) If the attorney do not attend the first 
 appointment on the summons, an order will be made of 
 course. (5) 
 After bill After an attorney's bill has been once taxed by the proper 
 once taxed officer of the court in which the business was done, it cannot 
 able- " ' ^^ taxed a second time by the officer of any other court. (6) 
 nor the Nor will a court of equity entertain cognizance of a bill for 
 amount ^j^ account filed by the attorney, suggesting that improper 
 able in a deductions were made by the officer upon the taxation, and 
 
 suit in praying; that the defendants mio;ht come to a fair account 
 equity. y j o ^ ^ o 
 
 with the plaintiff for the monies due to him. (7) After 
 
 (1) Dixon V. Plant, Doug. 199. {'i) Cowpcr\. MUburn,\]i&xnes, 
 n. Ex \i-Mtc Bcarcroft, ibid. 200. 102. 
 
 note. Grooviev. Syvionds,\lL\&i\. (5)4T. R. 580. 
 
 281. Contra, Anon. 2 Wils. 266.; (6) AslUon v. Moli/netix, 
 
 and see 1 Dick. 112. 285. 1 Barnes, 95. 
 
 (2) Wil(ldorey.Br}/an, sPri.6':9. (7) Osba/desion v. Cross, 2 Com. 
 
 (3) 1 Tidd.olR. 612.
 
 Sect. 3.] OF THE SOLICITOR. 885 
 
 the taxation of the bill, also, the client cannot have an Taxation 
 
 antecedent demand on the solicitor deducted out of what \ 
 
 was taxed due to the solicitor upon such bill ; for, by ap- 
 plying to have the bill taxed, the party submits to pay 
 what shall be actually found due thereon. ( I ) 
 
 The delivery of a former bill by an attorney is conclu- Attorney 
 . , . . p , . , bound by 
 
 sive evidence agamst an nicrease oi charge m a subsequent deiiverv of 
 
 bill, on any of the items contained in it, and also strong a former 
 
 presumptive evidence against any additional items — unless 
 
 any errors, or real omissions, can be shown in the former 
 
 bill (2) 
 
 Where, after verdict and an injunction to stay execution. After a 
 
 the parties finally settled the cause without the concurrence settlement 
 
 of the attorney, it was held, that he might nevertheless parties, 
 
 proceed to tax his costs, with a view of commencing an ™ay take 
 . , . PI /^\ his costs. 
 
 action in his own name tor the amount. (3) 
 
 In taxing costs between solicitor and client, it is now No charge 
 settled, that the solicitor can maintain no charge for draw- jn,r his bill. 
 ing his bill of fees and disbursements, for he is obliged by 
 the statute to deliver a bill to his client without any fee — 
 nor is he allowed the charge for the attendance of a clerk 
 in court upon the taxation, the latter being considered to 
 attend on tlie private retainer of the solicitor. (4) 
 
 With respect to the costs of taxation, the 2 G. 2. c. 23. Costs of 
 s. 23. in express terms subjects the attorney to the pay- 
 ment of them, if a sixth part of the amount of the bill is 
 deducted by the officer on taxation ; but in case less than 
 one sixth part is taken off, the statute gives the Court a 
 discretionary power (5) of directing those costs to be paid 
 either by the attorney or client, according to the reason- 
 ableness or unreasonableness of the bill. In the exercise 
 of this discretion, however, the courts are generally 
 o-overned by the distinction pointed out by the statute, and 
 make the client pay the costs of taxation, whenever less 
 
 (1) Anon. 2 Ves. 452. (3) Brooks v. Bourne, 1 Pri. 72. 
 
 (2) Loveridge v. Boihmn, 1 B.& (4) 1 Turner's Prac.400. 
 P. 49. (5) 2Anstr. 491. 
 
 3 L 3 
 
 taxation.
 
 886 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Taxation 
 of bill. 
 
 It) biiiik- 
 iLiptcy. 
 
 Where the 
 attorney 
 accepts a 
 less sum. 
 
 Where 
 items 
 charged to 
 a party not 
 liable. 
 
 than a sixth part is taken off the bill. (1) And the same 
 even where the client advances money to the attorney to 
 pay certain disbursements included in the bill, and the 
 sum deducted is more than a sixth part of the amount of 
 the bill, exclusive of those disbursements, but less than a 
 sixth part of the gross amount. (2) 
 
 The course in Bankruptcy, also, as to the taxation of a 
 solicitor's bill, proceeds by analogy to the statute 2 G, 2. 
 c. 23. If, therefore, upon relaxation by the Master, the 
 bill be reduced above a sixth, the solicitor must pay the 
 costs of taxation. (3) 
 
 If an attorney, in satisfaction of a bill delivered, accept 
 a less sum than what appears to be there charged, and the 
 bill is afterwards taxed, the attorney is not liable to pay 
 the costs of taxation, notwithstanding a sixth part is de- 
 ducted from the bill delivered — unless the sum, at which 
 the bill is taxed, is less than the sum received by the at- 
 torney in satisfaction of the bill, by one sixth of such last 
 mentioned sum. (4) Nor is the attorney liable to the costs, 
 where the sixth part taken off the bill arose, not by the tax- 
 ation of the particular items, but by the voJiole of certain eX' 
 fenses being disallowed — on the ground that the client was 
 not the 'person liable to those charges — and not because they 
 were objectionable in their nature or amount. (5) But in 
 a case before the Vice-Chancellor it was determined, that 
 where items were charged in a solicitor's bill to his client, in 
 respect of the defence of a third person at the alleged retainer 
 of the client — and, in consequence of the solicitor failing 
 to prove such retainer, those iteins were struck out on tax- 
 ation, such items were to be computed among the de- 
 ductions, for the purpose of determining upon whom the 
 costs of taxation were to fall; and that, generallj"^, when- 
 
 (1) Yea V. Frerc, 14Ves, 154. 
 Webb V. Stone, 1 Anstr. 260. Hurst 
 V. Dixon, 1 Barnes, 89. Cogan v. 
 Cave, 1 Dick. 96, Barker V. Bishop 
 of London, 2 Barnes, 147. 
 
 ('-') Hindlc V. Shacklelon, 1 Taunt. 
 J36. 
 
 (.5) Ex parte Westall, 3V.&B. 
 141. Ex parte /whom, Buck. 129. 
 Ex parte Hathaway, 2 Mad. 529. 
 
 (4) EcoUier v Dutour, 2 Bai'nes, 
 98. 
 
 (5) White V. Milncr, 2 H. B. 357.
 
 Sect. 4<.] OF THE SOLICITOR. 887 
 
 ever items would be properly taxable if the facts alleged Taxation 
 by the attorney were true, and are deducted because he "- ^ ' ' 
 does not establish those facts, the amount is to be reckoned 
 as a deduction in the question of costs of taxation. (1) 
 
 But the executor or administrator of an attorney is not Executor 
 liable to the costs of taxation, although a sixth part of the "°' ''^^^*^" 
 bill for business done by the testator or intestate be de- 
 ducted; for the statute imposes such costs upon the attor- 
 neif or solicitor only ; and an executor is held not to blame 
 if he makes out the bill from the attorney's books. (2) 
 
 Where, on the taxation of a solicitor's bill, so large a Where 
 
 sum was disallowed as to make it a matter of reprobation ^'^^o'^^y 
 
 1 ^ f -n 1 ordered to 
 
 by the Court, the Court of Exchequer not only ordered pay inte- 
 
 the costs of taxation to be paid by the solicitor, but also ^.^^*'» ^^" 
 
 Sides costs 
 ordered him to pay interest upon a surplus balance re- of tax- 
 
 maining in his hands, though it was not shewn that he ^tion. 
 
 had made any interest of it. Thejurisdictionof the Court 
 
 to make such an order was declared to be independent of 
 
 the 2 G. 2. c. 23. and to be founded on the necessary 
 
 and inherent control of every Court over the conduct of 
 
 its own officers. (3) 
 
 Where the attorney is entitled to the costs of taxation, Costs 
 
 he should demand them at the time; for if he settles a demanded 
 
 subsequent account with his client without applying for at the 
 
 them, the Court will refuse a rule to have them after- ™^* 
 
 wards allowed. (4) 
 
 Section IV. 
 Of Actions and other Proceedings by and against the Solicitor. 
 
 By the 2 G. 2. c. 23. s. 23. it is enacted, that no at- Bill must 
 
 i**Yii ** * D6 (lelivf^ro 
 
 torney or solicitor shall commence or maintain any action cd a month 
 
 or suit for the recovery of any fees, &c. at law or in equity, before 
 
 action 
 
 (1) Rigby V. Edivards, 5 Mad. (5) Rex v. Rack, 9 Pri. 349. brought. 
 '20. (4) Whitjk'ld V. James, 1 Bing. 
 
 (2) Weston V. Poole, 2 Str. 1056. 207. 
 Dutlon V. Agate, Say. Costs, 327. 
 
 3l 4^
 
 888 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Actions 
 by and 
 anainsf. 
 
 Must be 
 left with 
 the party. 
 
 Delivery 
 at count- 
 ing-house 
 insuffi- 
 cient. 
 
 Service 
 upon one 
 ot" several 
 assignees 
 sufficient. 
 
 Bill for ob- 
 taining the 
 certificate. 
 
 Business in 
 
 Insolvent 
 
 Court. 
 
 until the expiration of one month or more after such at- 
 torney or solicitor respectively shall have delivered unto 
 the party to be charged therewith, or left for him at his 
 dwelling-house, or last place of abode, a bill of such 
 fees, &c. written in a common legible hand, and in the 
 English tongue, and subscribed with the proper hand of 
 such attorney. 
 
 Before any attorney can support an action for his fees, he 
 must not only sign and deliver, but he must also leave his 
 bill with the party to be charged (1 ) ; for the mere delivery 
 of it to him (if the attorney take it back again) will not 
 be sufficient, although the party should even acknowledge 
 the debt and promise to pay it — the intention of the statute 
 being, that the client should have due time to examine the 
 charges made by the attorney, and take advice upon them if 
 necessary. (2) 
 
 The bill of a solicitor to a commission of bankrupt has 
 been decided to be within the provisions of the above men- 
 tioned statute (3) ; and the delivery of the bill at the counting- 
 house of the client has been held to be not a good delivery - — 
 the statute requiring that it shall either be delivered to the 
 party perso7ial!^, or left at his d'H'eUing-Jwuse or last place of 
 abode. (4) But where there are several assignees, it seems 
 that the solicitor is not bound to serve each of them with a 
 copy of his bill previous to the action ; but that service 
 upon any one will be sufficient (5), if he has acted under 
 the commission. 
 
 An attorney's bill for obtaining a bankrupt's certificate 
 must, as in other cases, be signed and delivered a month 
 before he can sue upon it ; for the obtaining the Lord 
 Chancellor's signature is considered as business done in a 
 court. {Q) So an attorney cannot maintain an action for 
 
 (1) Clarke v. Donovan, sT. R. 
 694. 
 
 (2) Brookes v. Mason, I II. B. 
 290. 
 
 (3) 2 Bos 544. 
 
 (4) mil V. Humphreys, 2 B. & 
 P. 543. 
 
 (5) Croivder v. Slice, 1 Camp. 
 457. Finchctt v. How, 2 Camp. 
 279. Oxenham \. Lemon, 2 Dow. 
 &R. 461. 
 
 (6) Collins v. Nicholson, 2'Vs.\itiU 
 521. 1 Rose, 119.
 
 Sect. 4.] OF THE SOLICITOR. 889 
 
 business done in the Insolvent Court, without a previous Actions 
 
 delivery of his bill pursuant to the statute. (I) ^^ "P^ 
 
 But a solicitor may maintain an action against an as- ^ 
 
 signee for business done under a commission of bankrupt, ^^^^"^ 
 although the bill has not been taxedhy a Master in Chancery niay be 
 under the fourteenth section of the new bankrupt act; for brought 
 the provision contained in that section does not affect the not taxed, 
 right of an attorney against his employer, but only applies 
 to the protection of the estate. (2) And ^an attorney need 
 not be admitted a solicitor in Chancery, in order to main- 
 tain such action. (3) The assignees, however, are not liable Assignees 
 to be joined as defendants in an action by the solicitor for gugj"/ 
 the costs of issuing the commission, even though the peti- costs of 
 
 tionins; creditor is one of the assignees. (4) issmng^ 
 
 p ... commis- 
 
 It is no defence to an action by a solicitor against an sion. 
 
 assignee, that the commission was sued out under a repre- Commis- 
 
 sentation by the plaintiff, that the commission would be fruitless"^ 
 
 operative in the Isle of Man, and that it has been wholly does not 
 
 fruitless; for the commission itself, whilst in existence, ^oiiTof 
 
 cannot be considered as a mere nullity. (5) action. 
 
 Where the solicitor to the commission received from the Where a 
 
 bankrupt a promissory note for his bill of costs in procur- solicitor 
 
 , rcstr<iin6ci 
 
 ing his certificate — and the bankrupt had purchased the by injunc- 
 
 debts of many of the creditors — and the solicitor was in- ^^^"^ 
 debted to the estate in such a sum, that the share of it 
 coming to the bankrupt (standing in the place of those 
 creditors in respect of the debts so purchased by him) 
 would exceed the amount of the promissory note ; — the 
 solicitor was, under these circumstances, restrained by in- 
 junction, on petition, from negotiating the note. (6) So 
 also, where a solicitor's bill was by an order in bankruptcy 
 
 (1) Smith V. Wattleworih,4cB.& C. 158.; and see Furd v. IVebb, 
 C. .364. sB. &B. 241. Ex parte Smith, 
 
 (2) Tarn v. Het/s, 1 Star. 278. 19Ves. 473. 
 Arrowsmith v. Barford, 1 Star. 279. (4) 2 Cauip. 276. 
 
 note(i). Finchettv.How, 2Ca.m\). (.5) Pasmore\.Bi>mie,2Star.59. 
 279. (6) Ex parte Harding, Buck, 24. 
 
 (s) Wilkinson v. Diggell, 1 B. & 57.
 
 890 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Actions 
 by and 
 against. 
 
 may sup- 
 port a 
 commis- 
 sion, upon 
 his bill, 
 though not 
 previously 
 delivered, 
 and though 
 pending an 
 order for 
 taxation of 
 it. 
 
 A solicitor, 
 in general, 
 not liable 
 to the 
 bankrupt 
 in an ac- 
 tion for 
 suing out 
 a commis- 
 sion. 
 
 When a 
 
 petition 
 will lie 
 against 
 him. 
 
 referred to a Master for taxation, and after the bill was 
 taxed, and more than a sixth taken off, the solicitor brought 
 an action for the taxed costs, without deducting the costs 
 of taxation, — the action was stayed on petition, and a re- 
 ference was made to the Master to tax the costs of the tax- 
 ation of costs, which were ordered to be deducted from the 
 amount of the taxed costs, and the balance only to be paid 
 to the solicitor. ( 1 ) 
 
 Though an attorney has not delivered his bill pursuant 
 to the statute of the 2 G.2. c.23. s.22., and cannot there- 
 fore bring an action upon it, yet we have seen (2), that he 
 may support a commission upon the amount that is owing 
 to him ; though, in such a case, the bill will be afterwards 
 referred to the Master to be taxed, either upon the appli- 
 cation of the bankrupt, or of any of the creditors. (3) And 
 where a solicitor, even pending an order for the taxation of 
 his bill, and for staying all proceedings at laiso in the mean- 
 time, sued out a commission upon it, — he was held not to 
 be guilty of a contempt, nor was the commission supersed- 
 able ; for the order was construed to extend only to bringitig 
 actions, and the common and ordinary proceedings. (4) 
 
 A solicitor, who sues out a commission of bankrupt for his 
 client, is not in general answerable to the bankrupt in an 
 action for damages for suing it out without sufficient cause, 
 notwithstanding he sends in the messenger to take possession 
 of the property of the bankrupt. In a case of this nature 
 before Macdonald C. B., he said there was no satisfac- 
 tory ground for a verdict against the solicitor, who was 
 professionally bound to act as he had done. (5) 
 
 If the solicitor do not pay the commissioners' fees to 
 them, when they are summoned to attend, they may pe- 
 tition against him. (6) And a petition will also lie against 
 
 (1) Ex parte ifeZ/o«,4Mad.379. 
 
 (2) Ante, p. 91. 
 (5) Ex parte Sutton, 1 1 Ves. \63. 
 
 Ex parte Steele, 16 Ves. 166. Ex 
 parte Howell, 1 Rose, 31 'J. Ex 
 parte Prideaux, 1 G. & J. 28. 
 
 (4) Moseley's Rep. 27. l C. B. L. 
 17. 
 
 (5) Smith V. Gain-sford, 1 Rose, 
 148. (n). 
 
 (6) Ex parte Griffith, 2 Rose, 
 342. 1 Mad. 56.
 
 Sect. 4.3 OF THE SOLICITOR. 891 
 
 a solicitor to account for property received under the com- Actions 
 
 ' • / , \ by and 
 
 mission. (1) J^^.^^^ 
 
 When a solicitor presents a petition in his own behalf 
 
 in any matter of bankruptcy, the attestation required in v^^ to peti- 
 other cases (2) is in this instance dispensed with. (3) licitor- 
 
 The Court of Common Pleas has refused to stay proceed- When 
 
 inffs, or to discharge a defendant on common bail (in an f^^'^", ^ 
 °. ° ^ brought 
 
 action brought bj' an attorney for the recovery of a bill of by attor- 
 
 costs), though the ground of the application was, that such ".^^ before 
 
 . . the expir- 
 
 action was begun before the expiration of a month after the ation of a 
 
 delivering of the bill ; — because, as that circumstance '"o"''^- 
 
 might have been taken advantage of, either in pleading or 
 
 at the trial of the cause, the Court held it unnecessary to 
 
 interfere upon motion. (4) 
 
 In the case of an action brought by the executor or ad- Where 
 
 mi7iistrator of an attorney, the Common Pleas have held it ^^^^\ 
 
 unnecessary, that the bill should be delivered before the executor 
 
 commencement of the action. (5) But both that Court and *^^^" ^^' 
 
 ^ torncv* 
 
 the Court of King's Bench will now make a rule for refer- 
 ring the bill in such a case to taxation, upon the defend- 
 ant entering into the usual undertaking to pay what shall 
 be found due. (6) 
 
 Where the previous delivery of an attorney's bill is Evidence 
 necessary to be proved at the trial to support the action, P^^^ssary 
 
 rn . ... 1 } ^n support 
 
 it is sufficient to give in evidence a copy of the bill which of an ac- 
 has been delivered to the defendant, without proof of ^^^"^ ^y ^" 
 notice to produce the original. (7) But the plaintiff can- 
 not give parol evidence of the contents of the bill de- 
 livered, unless he has given notice to produce it. (8) A 
 mistake in the date of items in the bill, which does not 
 
 (1) Saxton \. Davis, IsVes. 72. C. P. 58.; and see HuUock, 499. 
 1 Rose, 79. Andr. 276. 
 
 (2) See ante, p. 840. (6) Penson v. Johiison, 4 Taunt. 
 
 (3) Ex parte Kingdon, 1 Mad. 724. 
 
 446. (7) Anderson v. May, 2 B. & P. 
 
 (4) Harper v. Leech, 1 Barnes, 237. 
 
 96. Tomlinsonv. Clarke, 'iMoore,^. (8) Pkilipson \, Chase, 2 Camp. 
 
 (5) Spink V. Hare, 1 Barnes, 110. 
 1433 Griffi.lk V. Squire, Cas. Pr.
 
 892 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Actions 
 by and 
 against. 
 
 Of the 
 trans- 
 action of 
 the busi- 
 ness, and 
 the re- 
 tainer. 
 
 mislead, has been held not to vitiate the delivery of it, 
 if regular in other respects. ( 1 ) And though the production 
 of the writ is the usual mode of proving, that the action 
 was not commenced till the expiration of a month from the 
 time of such delivery, yet the Nisi Prius record has been 
 also holden to be good iirimd facie evidence, that the action 
 was properly commenced, and sufficient to satisfy (if un- 
 contradicted) the 2 G. 2. c. 23. The defendant, however, 
 may (if he can) contradict such evidence, by showing by a 
 copy of the writ, that the action was really commenced be- 
 fore the time. (2) 
 
 After proving the delivery of his bill, the plaintiff must, 
 also, give some general evidence that the husiness was 
 done, as well as of his own retainei^ by the defendant. (3) 
 The performance of the business may be established by 
 the evidence of persons, who were in the plaintiff's office 
 at the time it was done; and the plaintiff's engagement 
 by or on the behalf of the defendant may be made out, 
 either by direct evidence of the fact — or, as it should 
 seem, by shewing that the defendant from time to time, 
 or occasionally, gave directions concerning, or appeared 
 as a party in, the proceeding. And it is a general rule, 
 as has been before observed (4), that the reasonableness 
 of the items in the bill cannot be discussed or entered 
 upon at the trial, nor upon the execution of a writ of en- 
 quiry after a judgment by default ; for, as the client has 
 a summary method of trying the propriety of the charges 
 by a reference to the Master, the waiver of that course 
 is held to amount to an admission of the fairness or 
 reasonableness of the charges, if the business were in fact 
 done. (5) So, the negligence of the attorney cannot be set 
 up as a defence upon the trial, however his conduct 
 might furnish the ground of an action for negligence — 
 
 (1) Williams v. Barber, 4 Taunt. 
 806. 
 
 (2) Webb V. Pritchett, 1 B. & P. 
 265. 
 
 (3) But see 2 Barnard, 253. 
 
 (4) Ante, p. 880. 
 
 (5) Williams v. Frith, Doug. 1 98. 
 Anderson v. May, 2 B. & P. 257. ; 
 and SCO 1 Esp. 159. HuUock, 500.
 
 Sect. 4f.] OF THE SOLICITOR. 893 
 
 at least, not unless it were sucli a species and degree of Actions 
 negligence, as to depi-ive the defendant of all possible ad- H^amst 
 
 vantage from the proceedings constituting the charges in 
 
 the bill. (1) But if the bill be not liable to taxation under 
 the 2. Geo. 2. — as, if it should be entirel}' for conveyancings 
 the items in it will then be open to discussion and examin- 
 ation at 'Nisi Prius; and, consequently, the plaintiff in such 
 a case must (besides proving the performance of the busi- 
 ness and the retainer) shew at the trial that the charges 
 are reasonable. (2) 
 
 Where some evidence is necessary of the plaintiff beifig Proof of 
 an attorney — as in an action for words, for instance, \^^ 
 spoken of the plaintiff in his profession — he need not attorney, 
 prove this by producing his admission, or by a copy of the 
 roll of attornies ; but proof that he acted as an attorney has 
 been held to be sufficient. (3) 
 
 But although an aitorney cannot supjjort an action upon Astoat- 
 his bill before the expiration of a month after the delivery ?J."^^ * 
 of it, yet the omission to deliver it a month beforehand set of the 
 
 will not prevent his rio'ht of sett i??o:-o/F the amount in an ?"'^V"'- ^^ 
 
 , , ■ 1 • TT 1 h^^ "^i^^- 
 
 action brought against him. tie must not, however, pro- 
 duce it at the trial by surprise ; though it is sufficient, in 
 such a case, to deliver it time enough for the plaintiff to 
 have it taxed before the trial. But it cannot be set off, if 
 it has not been delivered at all. (4') 
 
 It was decided by Lord Kenyon at Nisi Prius, that an Whether 
 
 attorney cannot maintain an action even for the amount of ''^"'^^"^7 
 '' . . can reco- 
 
 money actually expended by him in respect of the com- ver for 
 
 mon law business of his client, without a previous de- ™""^y ^c- 
 
 I tually ex- 
 
 livery of his bill, notwithstanding he may have agreed to pended 
 
 take the amount only of the money expended in satisfaction ^^'t'\o"t 
 
 ,.. . 1 -11 / x T. • 1 • I 1 -1 1 previous 
 
 oi his bill. (5) But It has since been determined, where an delivery. 
 
 attorney at the defendant's recjuest put in bail for him in 
 
 (1) Teinplerv. 3I'Lacklan,2N. (4) Martin v. Winder, Doug. 
 R. 136. 199. (n) 1 Esp. 449. Murpliy v. 
 
 (2) HuUock, 501. Cunningham, 1 Anstr. 198. 
 
 (3) Berryman v. Wise, 4 T. R. (5) Miller v. Towers, Peake, 
 566. 102.
 
 894 
 
 OF THE SOLICITOR. 
 
 [Cll. 23. 
 
 Actions 
 by and 
 against. 
 
 Where 
 one tax- 
 able item 
 in a bill 
 delivered, 
 attorney 
 cannot re- 
 cover any 
 part with- 
 out prov- 
 ing a regu- 
 lar deli- 
 very; 
 
 even for 
 items not 
 connected 
 with the 
 profession 
 of an 
 attorney. 
 
 Where no 
 bill deli- 
 vered. 
 
 an action, and afterwards paid the debt and costs, and then 
 sued the defendant for the amount so paid, without making 
 any charge whatever for his own trouble, — that, in such a 
 case, the attorney need not deliver a bill to entitle him to a 
 verdict — Lord C. J. Gibbs saying, that the statute only ap- 
 plied to cases, where an attorney sues to recover a com- 
 pensation for his labour and skill. (1) If, however, the 
 bill be actually delivered, containing some charges liable to 
 taxation, and others not — and it appear that the delivery 
 was not strictly conformable to the statute, the plaintiff must 
 in that case be nonsuited ; for if one single taxable item be 
 found in a bill delivered, it brings the whole bill within 
 the operation of the statute (2) ; and this more especially 
 when the other items in it are for business done in the 
 character and in the exercise of the duties of an attorney — 
 such as for conveyancing business, for example, in which 
 case the plaintiff cannot split his demand, but the statute at- 
 taches upon the whole. (3) And, from what Lord Eldon 
 says in his judgment in this case, it would seem, that if items 
 even 7iot connected with the profession of an attorney are in- 
 serted in the bill, the plaintiff will be equally precluded from 
 recovering upon them — on the ground, that an attorney 
 who inserts his whole demand upon his client in a bill con- 
 taining taxable items^ will be taken to agree th^t he will not 
 bring an action upon any -part of such demand until the 
 bill has been delivered a month. In one case, also, though 
 710 hill was delivered before the action brought, but the 
 txiliolc demand was connected with the plaintiff's character of 
 an attorney, it was holden that the attorney's demand could 
 not be severed (4) ; though in another case, where no 
 hill had been delivered, Lord Kenyon admitted proof of 
 charges for conveyancinghnsmess (5) ; and in one instance, 
 where «o hill\\a.di been previously delivered — notwithstand- 
 
 (1) Frotheroy. Thomas, 6 Taunt. 
 196, 
 
 (2) Winters. Payne, 6 T.R.615. 
 (.5) Hill V. Humphreys, 2 B. il' 
 
 P. 345.; see 1 Ciiliip. 457. 
 
 (4) Bentonv. Garcia, oUsp. 149. 
 
 (5) Miller v. Towers, supra; 
 and see 2 B. & P 345. per Lord 
 Eldon.
 
 Sect. 4.] OF THE SOLICITOR. 895 
 
 ing the plaintiff delivered a bill of the particulars of his Actions 
 demand under a Judge's order subsequent to the com- -^ , 
 
 mencement of the suit, in which were contained items liable 
 
 to taxation — the plaintiff was held entitled to recover the 
 amount of other items charged in respect of payments for 
 the client's use, such payments not being referable to the 
 jilaintiffs business of an attorney. {\) 
 
 From a revision of the preceding cases, it follows, that General 
 wherever a bill is liable to be taxed under the 2 G. 2. c. 23., 'esult. 
 it must be previously delivered conformably to the provisions 
 of that statute, in order to entitle the attorney to a right of 
 action either for the whole, or for any part, of the amount. 
 
 There is one exception, however, to this rule — and that An agent 
 is, in the case of the bill of an age7it to a country attorney, "'^J:^ ""'. 
 which, although liable to taxation (2), need not be pre- bill. 
 viously delivered to found a right of action on it ; for the 
 statute of the 2 G. 2. only applies to a delivery to the 
 proper client, and not to a delivery by an agent to an 
 attorney. (3) Neither is such a bill within the provisions 
 of the former statute of 3 Jac. 1. c. 7.} which enacts that all 
 attornies and solicitors shall give a true bill unto their 
 masters, or clients, before they shall charge their clients with 
 any fees or charges. (4-) And, in general, it will be suffi- 
 cient (to enable one attorney to maintain an action against 
 another attorney for fees without a previous delivery of his 
 bill signed, pursuant to the exceptions contained in the 
 12 G. 2. c. 13. s. 6.,) that the defendant is an attorney 2X the 
 time of bringing the action, although he might not have 
 been so at the time the business was done. (5) 
 
 Where an attorney, after an order of the Court of King's Where an 
 Bench for taxation of his bill and before it was taxed, j^^torney 
 brought an action upon it in the Common Pleas, the last- action ' 
 mentioned Court refused to stay proceedings in the action, pending 
 
 {V) Mowbray v.Fleming,\\V.v&t, 2. note («). Nelson v. Garforth, 
 
 285. lEsp. 221. 
 
 (2) Ante, p. 884. (5) Ford v. Maxwell, 2 H. B. 
 
 (3) Bridges v. Francis, Peake, 1. 589. 1 Esp. 420. 
 
 (4) Ibid. Jones v. Price, Pe.nke,
 
 896 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Actions 
 hy and 
 against. 
 
 order for 
 taxation. 
 
 Attorney 
 cannot sue 
 for busi- 
 ness done 
 entirely by 
 his clerk. 
 
 When an 
 attorney 
 recovers a 
 verdict, 
 Court will 
 not stay 
 poslea to 
 have the 
 bill taxed. 
 
 saying that they could not prevent a party from pursuing a 
 remedy to which he was entitled by law, unless in so doing 
 he incurred a contempt of that particular court ; and that 
 it was for the Court of Ki?2g's Bench to enforce their own 
 order. (1) In such a case, however, the attorney runs the 
 risk of being committed for a contempt by the Court which 
 makes the order for taxation. But after the actual taxation 
 of the bill, there is then no objection to the attorney main- 
 taining an action for the sum awarded by the Master, 
 though pending an application to the Court for the costs of 
 the taxation. (2) 
 
 Where an attorney carried on business (at a town re- 
 mote from his own residence) by a clerk, whom he paid by 
 a proportion of the profits, — it was held that he could not 
 recover in an action for business done by such clerk for a 
 client, who never saw or [knew the attorney, nor ever had 
 the benefit of his judgment. (3) 
 
 After an attorney had brought an action and recovered a 
 verdict for the amount of his bill, the Court refused to stay 
 the postca in the hands of the associate, for the purpose of 
 having the bill referred for taxation and the postea indorsed 
 according to the allocatur — notwithstanding the jury ex- 
 pressly found " a verdict for the plaintiff for the amount of 
 the bill, subject to taxation ;" and the Court even discharged 
 a rule nisi which had been obtained for this purpose, with 
 costs ; the practice being inflexible, that the bill cannot be 
 taxed ajiet^ verdict. (4) 
 
 Solicitor With respect to suits in cguitj/ by a solicitor for his 
 
 eqiiitv if costs, it has been decided that such a suit may be en- 
 tertained, if for. business done in the court where it is 
 brought ; and where the business is done in another court, 
 that a bill in equity will also lie, if the business relate to 
 another demand, which the plaintiff makes in the court of 
 
 (1) Stcvcntonv. Watson, 1 B. & (3) Hoj)kinson v. Smit/i, 1 Bing. 
 P. 565. 15. 
 
 (2) Hewitt V. Bcllott, 2B.&A. (4) Hewitt v. Ferneley, 7 Pri. 
 745. 254,; and see ante, 880. 
 
 business 
 was done 
 in the 
 same 
 court.
 
 Sect. 5.] OP THE SOLICITOR. 897 
 
 equity. (1) In a judgment also delivered by Lord Eldon, Actions 
 on a bill filed by a clerk in court against a solicitor, he -^ "'■^^^\ 
 
 observed, that it did not follow because an officer of the ^ 
 
 court had a legal right, he might not also sue in his own 
 court; and that the question depended in some degree 
 upon the usage and inherent jurisdiction of the Court to 
 compel its officers to do justice to each other, particularly 
 in the matter of fees. (2) But where a bill was filed by an Alith his 
 executrix of an attorney, to be paid the amount of the executor. 
 testator's demand for business done both as an attorney 
 and solicitor for the defendant, and the bill was demurred 
 to, — Lord Hardwicke, in this case, allowed the de- 
 murrer. (3) 
 
 Section V. 
 
 Of his Liability for Misconduct^ and herein of his general 
 Liability. 
 
 An attorney or solicitor is liable to be punished for Solicitor 
 
 any misconduct in a summary way by the Court, of which ^"ipj'.opei'ly 
 , . !./•'*', . . 1 , lending his 
 
 he is an attorney or solicitor ; — on the principle, that name, how 
 
 every Court is entitled to claim a necessary control over Py"'sh- 
 
 . '' able. 
 
 the conduct of its own officers. (4) If a solicitor, there- 
 fore, lends his name to a person forbid by the Lord Chan- 
 cellor to take out a commission, he will be struck off the roll 
 for that reason alone. And Lord Eldon, upon one occasion, 
 said he would in such a case go further ; and that when- 
 ever a case of that nature should be brought forward, he 
 would direct the Attorney- General to prosecute for a con- 
 spiracy. (5) So, in a case where two solicitors were guilty Suina out 
 
 a fraudu- 
 
 {\) Lord Ranelaghv. Thornhill, A. 257. Ex parte Fisher, 1 Chitt. 
 1 Vern. 205. 694. Re^r v. £ac/i, 9 Pri. 349. 
 
 (2) Barker v. Dacie, 6 Ves. 68 1 . ; {5) 6 Ves. 2. ; and see In re Jack- 
 and see the cases cited in argument, son and Wood, 1 B. & C. 270. But 
 ibid., and ante, 870. an agreement by an attorney to 
 
 (.5) Parry v. Owen, Ambl. 109. pay a share of the profits oi" his 
 3 Atk. 740. business to another person who is 
 
 (4) Ex parte Prankerd, 3 B. & not an attornej', is not illegal, Can- 
 dler V. Candler, 1 Jacob, 270. 
 
 a M
 
 898 
 
 OF THE SOLICITOR. 
 
 [Ch. 23. 
 
 Liability, 
 
 lent com- 
 mission. 
 
 Applica- 
 tion to 
 remove 
 must be 
 addressed 
 to the ge- 
 neral juris- 
 diction of 
 the Court. 
 
 Solicitor 
 not ame- 
 nable for 
 
 attesting 
 a petition 
 whilst in 
 prison. 
 
 Where 
 
 charged 
 with costs 
 in bank- 
 ruptcy. 
 
 False de- 
 scription 
 of commis- 
 sioners. 
 
 of gross misconduct in suing out a fraudulent commission, 
 Lord Thurlow ordered the solicitors to be committed, and 
 deprived one of them of his office of a Master Extra- 
 ordinary in Chancery ; — and further ordered, that they and 
 other parties concerned should pay the costs, as between 
 attorney and client. (1) And where the solicitor under a 
 commission took upon himself likewise the several incon- 
 sistent characters of banker, commissioner, and assignee, 
 Lord Eldon ordered that he should never be permitted to 
 take out another commission. (2) 
 
 An application to remove a solicitor from being or act- 
 ing as a Master Extraordinary of the Court of Chancery, 
 and to strike him off the roll of such court, (though it may 
 be properly made by reason of his conduct in a matter of 
 bankruptcy,) should not be made in the hanh~uptcy, but 
 should be addressed to the general jurisdiction of the 
 Court. (3) 
 
 Where a solicitor attested a petition in bankruptcy 
 whilst in prison, and it was contended that the petition 
 was void luider the statute of the 12 G. 2. c. 13. s.9., (which 
 makes void any process sued out in any court of law or 
 equity by an attorney or solicitor in prison, and renders 
 him also liable to be struck off the rolls, and incapacitated 
 from acting as an attorney in future;) — it was held, that so 
 highly penal an enactment must be construed strictly ; and 
 that in this case the statute did not apply; for that a 
 petition in bankruptcy is not, strictly speaking, a proceed- 
 ing either in law or equitij. (4) 
 
 In many cases the solicitor, when guilty of misconduct, 
 will be ordered to pay the costs of the proceeding in which he 
 has misconducted himself, or of the application made to 
 the Court complaining of his conduct; — as where he ob- 
 tains the docket (contrary to the general order) by ajalse de- 
 
 (1) Ex parte Thorp, 1 Ves, jun. (5) Ex parte Lowe, 1 G.& J. 78. 
 ."94. ; and see Ex paite Conway, (4) Ex parte Thompson, 1 G. & 
 l.~Vcs. 62. J, 508. 
 
 (2) Ex parte Edwards, 6 Ves. 4.
 
 Sect. 5.] 
 
 OF THE SOLICITOR. 
 
 899 
 
 scription of the commissioners in a country commission. (1) 
 So where a solicitor struck a second docket afjainst a bank- 
 rupt, merely on the ground of a variation in the spelling of 
 the bankrupt's name, though knowing it to be the same 
 person, — Lord Eldon ordered the second commission to 
 be superseded at the costs of die solicitor, (2) And where 
 he is implicated in suing out a concerted commission, he will 
 be jointly liable with the petitioning creditor and the bank- 
 rupt for the costs of superseding it. (3) In like manner, 
 where a solicitor was employed by a bankrupt to procure 
 his certificate, and he nenlected to obtain the signatures of 
 the commissioners, though it had long before been signed 
 by the proper number of creditors, — he was ordered to 
 deliver up the certificate and affidavits to the bankrupt, 
 and to pay the costs of the application. (4) So, where the 
 solicitor of a bankrupt presented an unnecessary petition, 
 he was ordered to pay 405. costs to the respondent (5); 
 and whenever a petition is wholly unfounded, he will in that 
 case be liable to pay the whole costs of the application. (6) 
 Where, also, in an affidavit of service of a petition, the 
 whole petition was recited verbatim, with a view to enhance 
 the expense, Lord Hardwicke ordered the solicitor who 
 drew it to pay the costs out of his own pocket. (7) So 
 when he makes an affidavit in support of a petition, which 
 contains irrelevant and scandalous matter, the Court 
 will order it to be taken off the file, and will direct the 
 solicitor to pay all costs as between solicitor and client. (8) 
 If a solicitor, also, refuses to deliver up the proceedings to 
 the assignees, and drives them to an application to the Lord 
 Chancellor to obtain them, costs will always in such a case 
 be given against him. (9) 
 
 Liability, 
 
 (1) Ex parte Conwaij, 15Ves.62. 
 Ex parte Arrowsvntli, 14 Ves. 209. 
 
 (2) Ex parte Ward, 1 Rose, 514. 
 (o) Ex parte Green, iG.&J.88. 
 
 Ex parte Prosser, Buck, 77. 
 
 (4) Ex parte Hougliton, 1 G. & 
 J. 14. 
 
 (5") Buck, 315. 
 
 3 
 
 (6) Ex parte CuUibert, 1 Mad. 
 78. 80. 
 
 (7) Ex parte Smith, 1 Atk. 159. 
 
 (8) Ex parte Simpson, 1 5 Vcs. 
 476. 
 
 (9) Ex parte Hardy, 1 Rose, 595. 
 Ex parte Titlcy, 2 Rose, S3. 
 
 iM 2 
 
 Striking 
 improperly 
 a second 
 docket. 
 
 Concerted 
 commis- 
 sion. 
 
 Neglect to 
 obtain 
 commis- 
 sioners' 
 signatures 
 to certifi- 
 cate. 
 
 Presenting 
 an unne- 
 cessary 
 petition. 
 
 Reciting 
 petition 
 verbatim 
 m affidavit 
 of service. 
 Making a 
 scandalous 
 aOiilavit. 
 
 Refusing 
 to deliver 
 up the 
 proceed- 
 in lis.
 
 tngs. 
 
 900 OP THE SOLICITOR. [Ch. 23 
 
 Liabilihj, In general, however, a solicitor is not chargeable with 
 
 ^^- costs unless he be guilty of such an abuse as amounts to a 
 
 When not contempt ( 1 ) ; and though, upon superseding a fraudulent 
 
 chargeable commission of bankrupt, the solicitor was charged with 
 
 costs as well as the other parties, yet he was held not 
 
 chargeable with the costs of a criminal prosecution which 
 
 was not under a direction in bankruptcy, and in which he 
 
 was not a defendant. (2) 
 
 When With respect to the general liability of an attorney or 
 
 \vith\-osts solicitor to pay costs in other proceedings at law and in 
 mother equity, — it has been determined in many cases (3), that 
 ^inss^'^' vvhere any party to an action or suit has been obliged to 
 jiay costs, or has inciu'red the liability to pay them through 
 the gross negligence, ignorance, or misbehaviour of his 
 attorney, the Court will (upon motion) order the attorney, 
 in the one case, to pay the costs instead of his client — 
 and in the other case, to reimburse the client the costs 
 which he has paid. 
 
 But besides this summary liability as to costs, an attorney 
 is also liable to iiis client in an action for damages, for any 
 loss or injury sustained for his misconduct. Thus, where 
 a party is nonsuited in an action, from the cause being 
 called on without the attorney ascertaining whether or not 
 a material witness for the plaintiff had arrived, he is an- 
 swerable to the party in an action upon tiie case for da- 
 mages. (4) So, if he pays into his own bankers the money 
 
 (1) Ex parte /Ze^wooc/, IsVes. Say. ."11. 2 Bl. 954. Valentine v. 
 G7. Hawkins, 2 Barnes, 5.56. Blcwitt 
 
 (2) ^\\)M-te Arrowftmith, 14Ves. v. Marsden, 10 East, 237.; and sec 
 209. Hullock, 485. et seq. vvhere most 
 
 (31 1 P. Wms. 593. Fow/ce v. of the autliorities are collected. 
 
 Horahin, 2 Barnes, 3. White v. Wright v. Castle, 5 Meriv. 12. 
 
 Washington, lBan\es, 302. Arden Robinson \. Elsom, 5B. &A. 661. 
 
 V. Lamleij, 1 Barnes, 177. Lamb Eutfe v. Rogers, 4 Taunt. 191. De 
 
 V. Goodenough, 2 Biivnc^,2Q0. Mac- Ronjlgny v. Peak, 3 Taunt. 484. 
 
 donald v. Giinter, 1 Barnes, 242. Clarke v. Gorman, 3 Tannt. 492. 
 
 Cave V. Aaron, 5 Wils. 33. 1 Bl. Gruggen y. White, ATavmt. SSI. 
 376. Ferguson \. Mackrelh, 4T. (4) Recce v. Rigbij, 4 B. & A. 
 
 R. 37 1 . n. (A). Atkinson v. Burton, 20.2.
 
 Sect. 5.] OF THE SOLICITOR, 901 
 
 of his client, mixing it with his own, and the bankers be- Liability , 
 come bankrupt, the attorney is in this case liable to make ' 
 good the loss to his client. (1) In like manner, where an When 
 attorney lends his clients money upon security, which even- '^^j^j^ a,j. 
 tually fails through his negligence, he is liable to make good damages. 
 the loss ; — and this in one case, where there was even an 
 acquiescence in the loss for twenty-five years, and a settle- 
 ment and discharge of his account, the attorney having 
 concealed from the client the real state of the transaction, 
 and having omitted to communicate the insolvent state 
 of the parties with whom he had dealt on his client's be- 
 half. (2) So, also, where an attorney (who was em- 
 ployed by a vendee to inspect the title to an estate) 
 omitted to lay before counsel for his opinion a supple- 
 mentary abstract of the vendor's title, (which was delivered 
 to him by the vendor's solicitor after the principal ab- 
 stract — and which second abstract would have induced the 
 counsel to give an opinion against the title, instead of in 
 favor of it) — by which neglect the vendee was obliged to 
 pay a sum of money to a devisee in remainder of the estate, 
 in order to confirm his own title to it, after the execution 
 of the conveyance from the vendor; — the attorney, under 
 these circumstances, was held liable to an action by the 
 vendee for damages occasioned by his negligence. (3) But When not 
 there must be either crassa Jiegligentia, or lata culpa, in the ^'^'^'s. 
 conduct of an attorney, to render him liable to an action 
 for damages. Therefore a mere mistake in a point of prac- 
 tice will not subject him to such an action, and more espe- 
 cially where the point is doubtful, and the meaning of the 
 rule of Court, on which it is founded, is obscure. (4) 
 
 Where a penal action was brought against a defendant. Fatal vari- 
 
 on the 2 G. 2. c. 23., for acting as a solicitor m the Court of ^"ce in a 
 \ penal 
 
 (1) Uobinson v. Wariy 1 Ryan & (4) Laidler v. Elliott, 3 B.& C. 
 M. 274. 738.; and see Pitt v. Yalden, 4 Burr. 
 
 (2) Macdonald v. Macdonald, 2060. Baikie v. Chajidiess, 3 Camp. 
 iBligh, 315. 17. Russell v. Palmer, 2 Wils. 
 
 (^5) Ireson v. Pearman, 5 B,&C. 395. 
 799. 
 
 3 m 3
 
 902 
 
 OF THE SOLICITOR. 
 
 [Ch. 
 
 Liabiliti/, 
 
 action 
 
 against an 
 attorney. 
 
 Attorney 
 may make 
 himself 
 personally 
 liable. 
 
 Ckanceiy, viz. in the matter of T. S., a bankrupt, the de- 
 fendant not being a solicitor of the said court — and the 
 proof adduced was, that the defendant had been consulted, 
 and was instrumental in the matter of a petition in Bank- 
 ruptcij to the Lord Chancellor by the creditors of T. S. ; — 
 the plaintiff was nonsuited, on the ground that proceedings 
 in Bankruptcy are not proceedings in Chancery. (1) 
 
 An attorney may also make himself personally liable 
 from his own undertaking — or from dealing with a party 
 in the nature of a principal, so as to induce such party 
 to give him credit instead of his employer, though the bu- 
 siness (at the time of its being transacted) is known to be 
 for the benefit of his employer ; and the question in such 
 a case, to whom the credit is given, is a proper question for 
 the jury to determine. (2) So, where the solicitors of the 
 assignees of a bankrupt, whose lands were distrained for 
 rent, gave the following written undertaking: " We, as so- 
 " licitors to the assignees, undertake to pay to the landlord 
 " his rent, provided it do not exceed the value of the 
 " effects distrained," — it was held, that the solicitors 
 rendered themselves personally liable for the rent. (3) 
 Where also the attornies for the plaintiff and defendant 
 (in a cause which was ready for trial) entered into an 
 agreement, whereby they personally undertook that the 
 record should be withdrawn, that certain things should 
 be done by the plaintiff and defendant, and that costs 
 should be taxed for the defendant in a particular manner, 
 — it was held in this case, that the attorney for the plaintiff 
 was personally bound to pay the costs when taxed in the 
 mode specified (4), and was liable to an action for them. 
 An attorney is bound, also, by the declaration or admission 
 made by his clerk, in the course of any business which 
 the latter is authorized to transact, in the same way as 
 
 (1) Ford V. Webb, 3 B.&B. 241. 
 
 (2) Scrnce V. WhUtiiigton, sB. 
 & C. 11.; and see Foster v. Blake- 
 lock, 5 B. & C. 528. 
 
 (3j Burrell v. Jones, 5 B. & A. 
 47. 
 
 (4) Iveson V. Conington, l B, & 
 C. 160. '
 
 Sect. 5.] OF THE SOLICITOR. 90S 
 
 every principal is bound for the acts of an accredited and Liability, 
 authorized agent. Therefore, where the clerk, in attending _____ 
 the taxation of costs in an action for his employer (the at- 
 torney in the cause), declared, that his master had con- 
 ducted the suit from motives of charity, and would not 
 charge extra costs, — it was held, that the attorney in this 
 case was bound by such declaration, in an action subse- 
 quently brought against him to recover the amount of da- 
 mages, which had been received by him in the former 
 action. (1) 
 
 (l) Askbourn v. Price, 1 Dow. &R. 48. 
 
 3 M 4
 
 INDEX. 
 
 Abatement ; and see « Death." " Demise of Crown." 
 
 a commission does not abate suits pending, 124. 
 ABROAD, REMAINING, 47.; and see "Act of Bankruptcy " 2. 
 
 , PROPERTY; and see " Assigftment," 4. 
 
 ABSENTING HIMSELF, 51.; and see " Act of Bankruptcy" 4. 
 ACCEPTANCE ; and see " Bills of Exchange." 
 
 exchange of, before due, not a good petitioning creditor's debt, 97. 
 ACCEPTOR. See « Bills of Exchange." 
 ACCOMMODATION BILL, 97.; and see " Bills of Exchange." 
 
 proof on, 253. 
 ACCOUNTS, 
 
 mode of balancing, 723. 
 
 order for taking distinct accounts under a joint commission, 132. 647. 652. 
 
 audit of assignees', 326. 498. 
 
 bankrupt destroying or falsifying renders certificate void, 594. 
 
 merely being in a slovenly state, no ground for staying it, 584. 
 ACT OF BANKRUPTCY. 
 Nature and Effect of, 40. 
 
 must not be of long standing, ib. 
 
 must be committed during or subsequent to trading, ib. 
 during the existence of a debt, ib. 
 in England, 41. 
 
 before commission is sealed, ib. 
 
 by every partner, when the commission is a joint one, ib. 
 cannot be by inference or implication, ib. 
 cannot be purged, ib. 
 must not be concerted, 42. 
 
 but parties and privies estopped, ib. 
 what concerted act not invalid, ib. 
 Enumeration of the several Acts of Bankruptcy, 45. 
 those made up of action and intent, ib. 
 where the intent is immaterial, 44. 
 1. Departing the Realm, 45. 
 slight evidence of intention sufficient when actual delay, ib, 
 when intention to delay inferred, ib. 
 when motive collected from letters, 46. 
 leaving England for Ireland, a sufficient departure, ib.
 
 906 INDEX. 
 
 ACT OF BANKRUPTCY — ro?2/;inMef/. 
 DejMrting the Realm. 
 
 not an act of bankruptcy, where a bond fide intention to return, 46. 
 or going for a laudable purpose, ih. 
 or previously advertising an intention to go abroad, 'ib. 
 alith, when fear of arrest co-operates with the laudable motive, 47. 
 2. Being out of the Realm, and remaining abroad, ib. 
 how intention to be collected, ib. 
 staying an unreasonable time, ib. 
 leaving no funds for payment of debts, ib. 
 5. Departing from Dwelling-house, 48. 
 departure must be voluntary, ih. 
 when intention to delay inferred, 48. 
 if intention clear, no actual delay necessary, ib. 
 distance of the departure, or time of absence, immaterial, ib. 
 departure under a groundless fear of being arrested, ib. 
 where the departure not an act of bankruptcy, 50. 
 leaving home to recover a debt, ib. 
 to arrange with a creditor, ib. 
 
 for any lawful purpose, leaving word where he is gone, ib. 
 or ivhen he shall return, 51. 
 
 notwithstanding a creditor may be delayed, ib. 
 to avoid harsh language, ib. 
 where the object to avoid a duty, ib. 
 
 4, Otherwise absenting himself, 51. 
 
 withdrawing from the usual place where he is to be found, sufficient, 52. 
 
 from a temporary abode at a public-house, ib. 
 
 any place where he usually transacts his business, ib. 
 
 a merchant from the Royal Exchange, ib. 
 
 a proprietor from his theatre, ib. 
 
 concealing himself in a friend's house, ib. 
 not an act of bankruptcy where absence concerted, i6. 
 
 nor a mere breach of engagement, without an intent to delay, 53. 
 alith, directing servant to make an excuse to creditors, ib. 
 
 5. Beginning to keep House, 55. 
 
 as to necessity of denial to a creditor, ib. 
 must be by previous directions, 54. 
 to a creditor whose debt is due, ib. 
 need not be to the creditor himself, 55. 
 to a tax-gatherer sufficient, ib. 
 
 to collector of church-rates, ib. ' _ _ 
 
 immaterial whether creditor calls for payment or satisfaction, ib. 
 insufficient, if creditor calls on other business, ib. 
 
 to a bailiff^ to avoid the execution of a bail bond, 56. 
 to persons whom the servant believed creditors, ib. 
 where creditor does not ask to see the bankrupt, ib. 
 as to bankrupt being seen when denied, ib. 
 need not be at the party's oivn dwelling-house, ib. 
 when once a creditor denied, j)eriod of delay immaterial, 57. 
 where intention was to be dcniicd to a different creditor, 58. 
 capable of being explained by circumstances, ib. 
 
 as being engaged with company or business, &c., ib. 
 
 creditor calling on a Sunday, ib. 
 
 but not after giving general orders to be denied, ib. 
 where denial by wife, as to proving the fact, ih.
 
 INDEX. 907 
 
 ACT OF BANKRUPTCY — coniinwerf. 
 
 Beginning to keep House. 
 
 denial not the only evidence of keeping house, 59. 
 
 keeping bed-chamber, with directions to deny, ib. 
 
 retiring to ii secluded parlour, ib, 
 
 debarring all access to the house, ib. 
 
 otherwise secluding himself, 60. 
 
 as to a banker stopping payn)ent, ib. 
 
 as to evidence of intention, ib. 
 
 6. Suffering himself to be arrested for a Debt not due, G 1 . 
 
 7. Yielding himself to Prison, ib. 
 
 surrender in discharge of bail, not an act of bankruptcy, ib. 
 
 8. Suffering himself to be outlaived, ib. 
 outlawry in Ireland not sufficient, ib. 
 
 must be with intent to defeat or delay creditors, i6 
 
 as to eifect of reversal of outlawry before commission, 62. 
 
 9. Procuring himself to be arrested, ib. 
 
 10. Procuring his Goods, Sfc. to be attached, sequestered, or taken in exe- 
 cution, ib. 
 
 attachment for mere default or laches not within the act, 63. 
 
 nor a sequestration of tithes for not repairing a chancel, ib. 
 
 nor clandestinely conveying his goods away to avoid an execution ib. 
 
 11. JSIaking ant^ fraudulent Grant or Conveyance, 63. 
 must be by deed, ib. 
 
 two species of conveyances within the statute, ib. 
 
 1st, those void at common law; 2dly, those void under the bankrupt 
 
 law, 64. 
 as to conveyances void at law, ib. 
 as to those void under the bankrupt law, ib. 
 
 former doctrine as to such conveyances, 65. 
 distinction between present and former enactment, id. 
 1st, where the conveyance is of all the effects, 66. 
 
 immaterial whether to secure a present debt, or to indemnify a 
 
 surety, 67. 
 as to exclusion of one creditor, or of part of the effects, 68. 
 where for the benefit of all the creditors, not an act of bank- 
 ruptcy unless commission issues within six months, ib. 
 not, if all the creditors assent, 69. 
 as to a conditional assignment, 70. 
 where one partner omits to execute assignment, ib. 
 when drawn up contrary to instructions, ib. 
 where made in India, ib. 
 2d, where assignment of only^ja?-^ of the effects, 71. 
 
 only fraudulent when in contemplation of baokruptcy, ib, 
 cases where such a deed held fraudulent, ib. 
 as to marriage settlement, 73. 
 cases where assignment held not fraudulent, ib. 
 grant or conveyance must be by a bankrupt, not to him, 74. 
 as to parol evidence of it, 75. 
 
 12. Making any fraudulent Surrender of his Copyhold Lands, ib. 
 
 13. Making any fraudtdent Gift, Delivery, or Transfer of any of his Goods 
 
 or Chattels, ib. 
 
 14. Lying in Prison for twenty-one Days, 76- 
 arrest must be lawful in its inception, 77.
 
 908 INDEX. 
 
 ACT OF BANKRUPTCY — co^itinued. 
 Lying in Prison for tiventy-one Days. 
 must be for a present debt, 77. 
 not on an equitable contract, 78. 
 for a penalty clue to the Crown, sufficient, ib. 
 relation of imprisonment when surrender in discharge of bail, ib. 
 period of imprisonment must expire before commission, 79. 
 
 but need not before docket, ib. 
 where a party detained by another creditor, ib. 
 imprisonment need not be in a public prison, 80. 
 
 must be continuous, ih. 
 
 after being committed on a criminal charge, ib. 
 
 how to be computed, ib. 
 
 15. Escaping out of prison or custody, Src, 81. 
 immaterial for what amount the arrest was made, ib, 
 escape must not be by implication, ib. 
 
 16. Filing a Declaration of Insolvency, 82. 
 
 I'equisites of this act of bankruptcy, ib. * 
 
 when commission must be sued out upon it, 83. 
 when docket must be struck, ib. 
 not invalid for being concerted, ib. 
 
 17. Fraudulent Composition with Petitioning Creditor, ib. 
 difference between the present and the former law, ib. 
 penalty on the petitioning creditor, 84. 
 
 18. Filing a Petition to take the Benefit of the Insolvent Act, ib. 
 requisites of this act of bankruptcy, ib. 
 
 19. As to Traders having j)rivilege of Parliament, 85. 
 proceeding by summons, ib. 
 
 as to evidence admissible to prove this act of bankruptcy, ib. 
 
 creditors competent to a certain extent, 86. 
 
 proceeding under a decree or order, ib. 
 ACTION, 
 
 against commissioners, 164.; and see " Commissioners" 5. 
 
 by and against bankrupt, 552.; and see " BarJcrupt" VI. " Commission" 6. 
 
 when it will be directed, 828.; and see " Supersedeas." 
 ACTION, Right of. 
 
 passes to assignees by conveyance of bankrupt's freehold property, 350. 
 so a right to recover back money lost at play, by the assignment, 386. 
 
 but does not pass unless assignees interfere, ib. 
 
 not for a maTe personal tort to bankrufit, ib. 741. 
 
 qucere, whether for a tort to bankrupt's property, 586. 
 ACTIONS AND SUITS, by and against Assignees, 726. 
 I. Of Suits in Equity, ib. 
 
 cannot be commenced without consent of creditors, 727. 
 
 creditors cannot give assignees a general power, 727. 
 
 must be a special consent for each particular suit, ib. 
 
 majority in value of creditors present binding, ib. 
 
 what defendant may plead when assignees sue without consent, ib. 
 
 when creditors refuse to assent, who may sue, ib. 
 
 when consent not requisite, 728. 
 
 ALL the assignees need not be made plaintiffs, ib. 
 
 bankrupt need not be made a party to the suit, ib. 
 
 but not a ground of demurrer if he is, ib. 
 
 if a discovery is prayed, bankrupt must answer, ih.
 
 INDEX. 909 
 
 ACTIONS AND SUITS — continued. 
 Of Suits in Equity. 
 where a bill of foreclosure filed against a bankrupt and his assignees, 
 
 729. 
 bill not sustainable by a creditor after the bankruptcy, ib. 
 where defendants not permitted to refer to their depositions, to put in 
 
 their answer, ib. 
 death or removal of assignees does not abate the suit, ib. 
 how assignees of one of several partners may sue, 730. 
 2. Of Actions at Laiv, and herein of Proceedings against the Sheriff, ib. 
 assignees may sue for debts in their own names, ib. 
 
 except where a bond made to a trustee in trust for l)ankrupt, 731. 
 one of the assignees may make an affidavit to hold to bail, ib. 
 when they must declare as assignees, ib. 
 
 how assignees may declare on a separate contract of one bankrupt, ib. 
 how assignees under three separate commissions must be described, ib. 
 what is a variance in their description, 752. 
 nonjoinder of an assignee ground of nonsuit, ib. 
 need not set forth commission in declaration, ib. 
 may sue in the debet and detinet, ib. 
 where they may bring either trover or assumpsit, ib. 
 
 distinction between these two forms of action, 73". 
 
 when they have once elected, cannot bring the other action, ib, 
 
 cannot treat the same transaction as a contract and a tort, 734. 
 
 where trover will not lie, ib. 
 
 where not against vendor of goods for non-delivery, 735. 
 
 where trover will lie, ib. 
 
 when necessary to prove a demand and refusal, 736. 
 
 as to admission of proceeds of goods in an account stated, ib. 
 
 as to evidence against assignees of a joint act of conversion, 737. 
 
 when assumpsit will not lie by assignees, ib. 
 
 assumpsit, though affirming the contract, does not admit fraud, ib. 
 
 lies by assignees on contract of bankrupt after bankruptcy, 738. 
 
 does not lie when no money actually received, ib. 
 
 as to counts for money lent by plaintiif «« assignee, 739. 
 mode of declaring in actions by assignees, ib. 
 plea of an action by bankrupt pending, bad, 739. 
 in covenant for rent, assignees not obliged to set forth their title, 740. 
 debt on simple contract will not lie by assignees against an executor, ib. 
 when a retainer may be pleaded to debt on bond, ib. 
 profert need not be made by assignees in debt on a specialty, ib. 
 ejectment bad on a demise before the bargain and sale, ib. 
 in trespass against assignees, what is not a sufficient defence, 741. 
 what must be proved in an action against them for the proceeds of a bill 
 
 specifically appropriated, ib. 
 assignees cannot sue for a jjersonal tort to the bankrupt, 586. 741. 
 garnishee not liable to action by assignees when money duly attached, 
 
 742. 
 where debts under 40*. how assignees must sue, ib. 
 assignees barred by statute of limitations, ib. 
 
 need not allege that defendant had notice of act of bankruptcy, ib. 
 action not abated by the death of an assignee, 743. 
 when a removed assignee must join in an action, ib. 
 but nonjoinder in trover can only be pleaded in abatement, ib.
 
 910 INDEX. 
 
 ACTIONS AND SUITS — continued. 
 Of Actions at Lavj, Sfc. 
 new assignee may sue on a judgment recovered by former assignee, 743. 
 removed assignee liable to others for money had and received, ib. 
 when an assignee not permitted to defend an action, ib. 
 when assignees cannot sue for a chose in action, ib. 
 as to payment of money into Court in actions by assignees, 744. 
 assignees not restrained from bringing fresh action after nonsuit, ib. 
 where one of several partners bankrupt, who must be joined as plain- 
 tiffs, ib. 
 trover not maintainable by assignees, where goods delivered bona. 
 
 fide by solvent partner, (b. 
 where assignees cannot sue for a joint debt and separate debt in 
 
 the same action, 745. 
 but this irregularity cured by verdict, ib. 
 
 mode of declaring by assignees where debt accrued between the 
 acts of bankruptcy of the different partners, ib. 
 when assignees may maintain trover o gainst the sheriff , 746. 
 cannot have trespass before assignment, ib. 
 may have trover either against the plaintiff suing out the execution, 
 
 or the vendee of the goods, ib. 
 what amounts to a conversion by the sheriff, 747. 
 when sheriff safe from claims of assignees, ib. ; and see " Sheriff ^ 
 3. Effect of the Bankruptcy on previous Suits and Actions, 751. 
 suits in equity not absolutely abated by plaintiff's bankruptcy, ib. 
 when assignees must file a supplemental bill, ib. 
 present practice when defendant moves to dismiss the bill, 752, 755. 
 when money ordered to be paid to assignees without a supplemental 
 
 bill, ib. 
 as to bills previously filed by bankrupt for an injunction, 752. 
 when assignees liable to costs as defendants on a supplemental 
 bill, 753. 
 in actions at law defendant may plead the bankruptcy in bar, ib. 
 when bankruptcy no abatement of the action, 754. 
 where the parties were at issue before the bankruptcy, ib. 
 safest course for assignees to bring a fresh action, ib. 
 after judgment, assignees may proceed by scire facias, ib. 
 except where defendant brings a writ of error, 755. 
 where assignees may take out a sci. fa. for money levied after the 
 
 bankruptcy, ib. 
 where the previous proceedings by sci. fa., a fresh sci. fa. need not 
 
 be taken out by assignees, ib. 
 fi. fa. not amendable where defendant becomes bankrupt after the 
 execution of it, ib. 
 ADJUDICATION, 114. ISS.; and see " Opening Commission." 
 a matter of right in regard to petitioning creditor, 114. 
 as to the proceedings when time for enlarged, 122. 
 ADJOURNMENT, 
 
 of the choice of assignees, 315. 
 of the bankrupt's last examination, 515. 
 ADMINISTRATOR. See " Executor." 
 ADVERTISEMENT; and see " Commission," 7. 
 
 of the party being adjudged a bankrupt, 121. 141. 
 when it will be suspended, ib. 806.
 
 INDEX. 911 
 
 ADVOWSON, 
 
 passes to assignees, 360. 
 AFFIDAVIT; and see " Commission," 1. 
 
 of petitioning creditor cannot be resworn, 108. 
 
 irregularity in, no ground at law for invalidating commission, 109. 
 as to statement of the debt, ib. 
 
 not evidence of debt in any subsequent proceeding, 110. 
 should not be made with precipitancy as to act of bankruptcy, ib. 
 should agree with the petition, ib. 
 supplemental affidavit when permitted. 111. 
 when commissioners may make, in answer to a petition, 168. 
 when proof may be made by, 104. 
 of bankrupt upon applying for his certificate, 575. 
 of service of petition when must be filed, 590. 841. 
 of the truth of facts alleged in a petition, 590. 
 general order as to filing, ib. 
 in answer, when must be filed, 591. 
 to hold to bail may be made by 07ie assignee, 731. 
 of service of petition for a sujiersedeas, 824. 
 office copies of must be taken, 841. 
 as to filing, ib. 
 when should be sworn, ib. 
 
 before whom, 842. 
 should not be filed after the petition day, ib. 
 except when in support of a motion, ib. 
 should be pertinent to matter of petition, ib. 
 when may be amended, ib. 
 when affidavit in reply may be filed, ib. 
 when receivable before the Master, 843. 
 when scandalous, petition dismissed with costs, 855. 
 AGENT; and see " Factor," " Broker," " Banker." 
 when liable to bankruptcy, 26. 
 
 of attorney may prove and retain papers upon which he has a lien, 211. 
 nature and extent of his lien, 872. 
 his bill may be referred to be taxed, 884. 
 
 need not deliver his bill to support a right of action upon it, 895. 
 when sale of goods by valid to bind the principal, 465. 
 when may sign a petition for his principal, 838. 
 ALIEN ENEMY, 
 
 where he may claim a debt, 308. 
 
 trading under a licence may stop goods in transitu, 461. 
 ALLOWANCE, 
 
 to bankrupt under the commission, 544, ; and see " Bankrupt" V. 3. 
 of certificate by Lord Chancellor, 575.; and see " Certificate" 3. 
 ALUM, 
 
 making of, whether a trading or not, 31. 36. 
 AMENDMENT, 
 
 when commission may be amended, 119. 
 when an affidavit, 843. 
 AMENDS, 
 
 when commissioner may tender, 165. 
 ANNUITIES, 
 
 former practice as to proof of, 227. 
 provision of the new statute, 228.
 
 912 INDEX. 
 
 ANNUITIES — continued. 
 
 creditor may prove for the value of the annuity, 228. 
 
 mode of ascertaining the value, ib. 
 
 where annuity void, as to proof of consideration, 229. 
 
 deposit of deeds for securing annuity not within the annuity act, 230. 
 
 when annuities granted by bankrupt for inadequate consideration, ib. 
 
 annuity creditors upon the same footing as other creditors, ib. 
 cannot sue a surety without previously proving, ib. 
 nor the bankrupt after he has got his certificate, ib. 
 
 ;node of proceeding when annuity charged on lands, 231. 
 
 engagement to pay annual interest cannot be proved as an annuity, ib. 
 
 whether arrears subsequent to the commission may be proved, ib. 
 
 how a surety may discharge himself, ib. 
 
 when he may stand in the place of the annuitant, 232. 
 entitled to credit for dividends received by the annuitant, ib. 
 when surety obliged to pay any deficiency after bankrupt has got his 
 certificate, whether bankrupt discharged, ib. 
 
 whether annuity limited to i^ersonal enjoyment vests in assignees, 391. 
 
 consideration for discharged by certificate, 608. 
 APPEAL, 
 
 lies from commissioners to great seal, 147. 182. 196. 
 
 petition of from Vice-Chancellor must be signed by counsel, 844. 
 APPRENTICES, 
 
 former practice when master became bankrupt, 213. 
 
 discharged from indentures now by master's bankruptcy, ib. 
 
 proportionate part of premium to be returned, ib. 
 ARBITRATION, 
 
 submission to not revoked by a commission, 124. 
 ARMY AGENT, 
 
 not liable to bankruptcy as a banker, 22. 
 
 assignees of bound to render account of unclaimed balances, 496. 
 ARMY, 
 
 pav of officer not assignable, 359. 
 ARREST, 
 
 suffering for a debt not due an act of bankruptcy, 61.; and see " Act 
 of Bankruptcy "^6. 
 
 so procuring himself to be arrested, 62.; and see " Act of Banhruptcy" 9. 
 
 of witness attending commissioners amounts to a contempt, 160. 
 
 bankrupt's privilege from, 535. ; and see " Bankrupt," V. 1. 
 
 mode of proceeding to be discharged from before certificate, 542. 
 after certificate, 621.; and see " Certificate" 8. 
 
 privilege of solicitor from, 870. 
 ASSESSOR. See " Taxes." 
 ASSESSED TAXES, 
 
 Hen of the crown for, 495. 
 ASSIGNEES, 
 
 1. Of a 2}rovisional Assignee, 312. 
 when may be appointed, ib. 
 
 object of the appointment, 142. 312. 
 
 if no necessity for, costs of the assignment will not be allowed, 313. 
 
 copyholds should be excepted in provisional assignment^ ib. 
 
 2. Of the Choice of Assignees, 315. 
 
 must be chosen at second meeting, 314. 
 by what creditors, ib.
 
 7NDEX. 913 
 
 ASSIGNEES — con^mMed 
 Of the Choice of Assignees. 
 power of rejection by commissioners, 514. 
 three commissioners must be present at the choice, ib. 
 election not to be postponed without substantial reason, ib, 
 when to be adjourned under the general order, 315. 
 requisite qualifications of assignee, ib. 
 
 not necessary that he should be a creditor, ib. 
 as to creditor electing himself assignee, 316. 
 bankrupt cannot be an assignee, ib. 
 when creditors may prove in order to vote, ib, 
 how a corporation vote, 517. 
 receiver has no right to vote, ib. 
 
 joint creditors may prove under a separate commission to vote, 319. 
 grounds of application for a new choice, ib. 
 
 where one of several assignees rejected, choice set aside altogether, 318. 
 whether bankrupt may canvass for particular assignees, ib. 
 assignment should be entered of record, ib. 
 5. Of the Interest which Assignees take under the Assignment, 520. 
 no mterestbefo)'e assignment, ib. 
 not bound to take property of doubtful value, ib. 
 trust property does not pass to them, ib. 
 bound by the same equities as the bankrupt, 321. 
 can only take what bankrupt conscientiously entitled to, ib. 
 where interest in goods delivered vests, though bankrupt's intention 
 
 fraudulent, ib. 
 where an assignee dies leaving an infant heir, 553. 
 4, Of the Nature of their Trust, 522. 
 
 1 . Of their general Authority/, Duty, and Liability, ib. 
 bound to satisfy themselves of the validity of commission, 322. 
 if they act, must consider it valid, 323. 
 powers vested in bankrupt may be executed by assignees, ib. 
 authority limited to the purposes of their trust, ib. 
 power to compound debts, and refer to arbitration, 324. 
 caution to be observed in this respect, ib. 
 to commence suits in equity, ib. 
 to call meetings of creditors, ib. 
 operation of release by one assignee, ib. 
 whether receipt of one assignee binds the other, ib. 
 one of several assignees may be a petitioning creditor, 88.; and 
 
 execute the bond, 111. 
 no right to charge for business done by themselves as account- 
 ants, 325. 
 
 or for travelling expences, ib. 
 engaging in new adventures with a solvent partner, ib, 
 entitled to custody of the proceedings, ib. 
 
 and nomination of the solicitor, ib. 
 when liable for the acts of an agent, 326. 
 only answerable for their own acts, ib. 
 bound to keep correct and distinct accounts, ib. 
 
 to produce books, &c. when required by the commissioners, 327. 
 compelled to account by petition, ib. 
 
 dying before accounting, commissioners considered as specialty cre- 
 ditors, ib. 
 when bound by a contract of the bankrupt, 328. 
 when liable for goods ordered by bankrupt, ib, 
 
 5 N
 
 914 INDEX. 
 
 ASSIGNEES — continued. 
 
 Of their general Authority, Duty, and Liability. 
 
 for costs and witnesses' expences, o28. 
 to the solicitor and messenger, 329. 175. 
 bound to contribute for expences of joint acts, ib. 
 bound to submit to examination of commissioners, 159. 
 creditor chosen merely an assignee no estoppel of his suit, 189. 
 when competent as a witness, 802, 
 2. Of their Duty and Liability in collecting and disposing of the BanJc- 
 rupt's Property, 5.30. 
 personally liable for wrongful seizure of property, ib. 
 when assignees under separate commission reimbursed out of joint 
 
 estate, ib. 
 bound to make a speedy sale, 351. 
 
 not restricted to any particular mode, ib. 
 as to sale before commissioners, 552. 
 
 when biddings may be opened, ih. 
 sales free from auction duty, ib. 
 bound to make a good title, 333. 
 must give copies of title deeds, 554. 
 bankrupt may be ordered to join in conveyance, ib. 
 restricted from purchasing bankrupt's property, ib. 
 when this restriction will be relaxed, 336. 
 but held to the bargain, when contract beneficial, 355. 
 from taking a lease, 355. 
 or purchasing dividends of a creditor, 536. 
 how money should be lodged until a dividend, 557. 
 
 may be invested in the purchase of exchequer bills, 558. 
 penalty on assignee retaining money in his hands, ib. 
 where one assignee absconds, order as to checks on the Bank, 540. 
 5. When an assignee becomes banki-iqjt, 540. 
 what may be proved under his commission, ib. 
 solvent co-assignee the proper person to prove, ib. 
 bankrupt assignee's estate not entitled to dividend, until when, ib. 
 where two of three assignees bankrupt, what the solvent one may prove, 341. 
 when certificate of bankrupt assignee does not protect his future effects, ib. 
 bankrupt assignee must be removed, ib. 
 6. Of the Removal of Assignees, 542. 
 Lord Chancellor may vacate any conve)'ance or assignment, ib. 
 
 and order commissioners to execute new one, ib. 
 grounds for the removal of an assignee, 343. 
 bankrupt cannot alone petition for such removal, 344. 
 may be removed before assignment, ib. 
 who to execute assignment to new assignee, ib. 
 where one of several assignees refuses to act, ib. 
 liability of removed assignee to action by remaining assignee, ib. 
 mere order for removal does not divest the legal estate, 345. 
 where assignee applies to be removed, ib. 
 what he must state in his affidavit, ib. 
 must pay the costs of his removal, except when, ib. 
 Actions and Suits against. See " Actions." 
 ASSIGNMENT. 
 
 Part I. as to freehold property generally, and the mode of con- 
 veyance, 348. 
 how to be conveyed to assignees, ib. 
 as to property in the colonies, ib.
 
 INDEX. 915 
 
 ASSIGNMENT — cow^irtM^rf. 
 
 AS TO FREEHOLD PROPERTY, &C. 
 
 commissioners have only a power, not an estate, 548. 
 bargain and sale must be enrolled without delay, 349. 
 
 does not relate back to act of bankruptcy, 350. 
 
 operates upon estates only of which bankrupt actually possessed, ih. 
 not upon future property, ib, 
 
 but passes a vested contingent interest, ib. 
 and a right of action, ib. 
 lands not liable to a statute or judgment, unless execution taken out 
 
 when, 351. 
 as to lands of which bankrupt was seised in joint-tenancy, ib. 
 as to conveyance of estates tail, 352. 
 
 where remainder-man in tail bankrupt, assignees take only a base fee, ib. 
 devise of lands not revoked by bankruptcy, ib. 
 where an assignee dies leaving an infant heir, 555. 
 conveyances more than two months before the commission valid, ib. 
 Lord Chancellor may order bankrupt to join in any conveyance, ib. 
 
 2. Of Copyholds, 354. 
 
 3. Of Mortgages, 556. 
 
 4. Of Offices, 559. 
 
 5. Of Advoivsons, 560. 
 
 6. Of Reversions, 561. 
 7- Of Powers, ib. 
 
 8. Of a Possibility, or contingent Interest, 565. 
 
 9. Of a voluntary Conveyance, 565. 
 
 10. Of 071 executory or beneficial Contract, 567. 
 
 11. Of the Estate of the Wife, and Property settled by the Bankrupt upon 
 his Wife and Children, 370. 
 
 N.B. For the particulars under these different heads, see the re- 
 spective Titles in the Index. 
 Part II. as it affects the personal property, 382. 
 
 1. Of the personal Property in general, ib. 
 
 all present and future property before certificate passes to assignees, 585. 
 lottery ticket turning up a prize, ib. 
 
 property possessed by other persons in trust for bankrupt, ib. 
 assignment exempt from stamp duty, ib. 
 
 must be entered of record, ib. 
 stock may be transferred to assignees by order of the commissioners, ib. 
 
 where claimed by other parties, how ordered to be transferred, 584. 
 assignees not entitled to any part of the wearing apparel, ib. 
 penalty on persons concealing bankrupt's effects, ib. 
 reward for discovering them, ib. 
 
 2. Of Debts and Choses in Action, 585. 
 all debts vest in the assignees, ib. 
 
 a bond to a trustee for the bankrupt, ib. 
 
 a heriot or relief, ib. 
 
 a legacy given to bankrupt before certificate, ib. 
 
 except where bankrupt owes testator a larger sum, ib. 
 a bill deposited by bankrupt for a specific purpose, 386. 
 a right of action to recover back money lost at pla}', ib. 
 
 or money paid on a corrupt agreement, ib. 
 
 but right of action does not pass unless assignees interfere, ib. 
 
 nor for a mere personal tort to the bankrupt, ib. 
 
 queers, whether for a tort to the bankrupt's property, ib. 
 3 N 2
 
 916 INDEX. 
 
 ASSIGNMENT — continued. 
 Of Debts and Glioses in Action. 
 money in the hands of sheriff under an execution in tort, 587. 
 
 mode of proceeding to recover it, ib. 
 remaining instalments of premium payable by bankrupt's partner, 388. 
 compensation under the West India Dock Act, ib. 
 assignees have no power to assign the good-will of bankrupt's business, 
 
 so as to bind him, ib. 
 copyright of a newspaper passes to assignees, ib. 
 
 ' quccre right to a newswalk, 389. 
 patent right for an invention passes, ib. 
 so a policy of insurance on bankrupt's life, ib. 
 
 3. Of Leases and Annuities, and of Forfeiture upon Alienation, 390. 
 
 N. B. — For particulars under this head, see titles, " Lease." " An- 
 nuities." 
 
 4. Of Property abroad, 399. 
 passes to assignees, ib. 
 
 property in Ireland, Scotland, and the Colonies, ib. 
 
 where a creditor attaching money abroad liable to refund, ib. 
 
 when not so liable, ib. 
 
 where the attachment complete before the act of bankruptcy, 401. 
 where property duly recovered by process of local law, ib. 
 as to bank shares in the French funds on which a creditor had a 
 
 lien, ib. 
 courts here will favour the claim of foreign assignees, 402. 
 
 5. Of Property in the Possession, Order, or Disposition of the Bankrupt as 
 
 reputed Owner, 402. See " Eeputed Owner." 
 
 6. Of Property fraudulently delivered in Contemplation of Bankruptcy, 439., 
 
 and see " Fraudulent and voluntary Conveyance.^' 
 voluntary delivery of property in preference of a creditor void, ib. 
 so a transfer, when insolvent, to any person without consideration, 440. 
 except transactions more than two months before commission, ib. 
 or a gift o? money to a child for its maintenance, ib. 
 stock within the description "goods and chattels," 441. 
 money advanced to a lessee to procure the renewal of a lease, 441. 
 what acts amount to a fraudulent preference, 442. 
 delivery of goods under a pretended sale, ib. 
 or an absolute sale with an intention to prefer, ib. 
 where delivery not in the usual course of trade, ib. 
 
 or the accustomed mode of dealing between the parties, 443. 
 assignment of effects to a creditor, when deemed voluntary, ib. 
 when a payment, ib. 
 when not considered voluntary, 444. 
 
 where the creditor gives up a lien, ib. 
 payment of rent by the bankrupt to his landlord, ib. 
 payment in the regular course of trade or dealing, ib, 
 in pursuance of a previous agreement, 445. 
 transfer of property on the eve of bankruptcy, void, ib. 
 
 though appropriation of it previously contemplated, ib. 
 aliter, property restored by bankrupt, which he had obtained under false 
 pretences, 446. 
 
 or property delivered under a threat, or an apprehension, of legal 
 process, ib, 
 
 unless the delivery does not redeem bankrupt from any present 
 difficulty, 447. 
 when a voluntary transfer good, ib.
 
 INDEX. 917 
 
 ASSIGNMENT — continued. 
 
 Of Projjerty fraudulently delivered. 
 
 bankrupt contemplating that his trade will cease, without contemplat- 
 ing bankruptcy, 448. 
 contemplating merely an intended deed of composition, ib, 
 where the property is given up at a meeting of creditors, ib. 
 
 7. Of the Effect of the Assignment upon Goods in transitu, 449.; and see 
 
 " Stoppage in transitu." 
 
 8. Of Goods sent, but not accepted; and of Goods ordered, but not delivered, 
 
 470. 
 goods once delivered by a bankrupt on a precedent consideration do not 
 
 pass by the assignment, ib. 
 nor goods consigned to a bankrupt who declines to accept them, ib. 
 as where contract of sale is rescinded before goods arrive, 471. 
 though the countermand not received by the vendor until after the 
 actual delivery, ib. 
 
 provided it is made by the bankrupt before, ib. 
 but return of goods must be made instanter, 472. 
 
 for after once accepted the vendor cannot afterwards take them 
 
 back, 475. 
 nor when the sale is once recognized by the vendor, ib. 
 bankrupt must have right oi possession as well as of property for goods 
 to pass, ib. 
 
 though part of the price is paid, 474. 
 
 or he has advanced money on account equal to the value, ib. 
 so goods not forwarded or paid for pass to assignees of the manufac- 
 turer, though purchaser has accepted generally for a larger amount, 
 475. 
 
 if acceptance not appropriated to the payment of the price, ib. 
 but where it is, the property passes to purchaser after any act of 
 transfer, ib. 
 
 9. Of Goods subject to a Lien, 476. ; and see " Lien." 
 
 10. Of the Effect of the Assignment upon the Claims and Process of the 
 Crown, 490. ; and see " Crown Extent." " Excise." 
 
 ASSIGNMENT OF THE BOND TO THE CHANCELLOR, 134.; and 
 see " Commission" 6. 
 
 of a debt to a creditor, operation of, 185. 
 ASSIGNMENT FRAUDULENT. 
 
 an act of bankruptcy, 63.; and see " Act of Bankruptcy," 11. 
 ASSUMPSIT; and see " Actions," 2. 
 
 when assignees may bring trover or assumpsit, 132. 
 when assumpsit will not lie, 737. 
 when it will, 738. 
 ATTACHMENT FRAUDULENT, 
 
 an act of bankruptcy, 62. ; and see " Act of Bankruptcy" 10. 
 ATTACHMENT, 
 
 against bankrupt for not paying money into Court, where it does not 
 
 determine the creditor's election, 191. 
 by joint creditor in Mayor's Court, effect of under a separate commis- 
 sion, 633. 
 the like of an attachment in the West Indies, 634. 
 ATTAINDER, 
 
 does not prevent a commission of bankruptcy, 22. 
 but prevents a bankrupt from petitioning, 817. 
 
 5 N 3
 
 918 INDEX. 
 
 ATTESTATION, 
 
 of commissioners' signatures to certificate, 573. 
 
 of petitioner's signature to a petition, 588. 837. 838. et seq.; and see 
 " Petition." 
 ATTORNEY. See " Solicitor" 
 AUCTION DUTY, 
 
 does not attach on sales of a bankrupt's property, 201. #««•. J3^. 
 AUDITING ACCOUNTS, 526. 498. 
 AUDITA QUERELA, 
 
 when bankrupt entitled to relief under, 622. 
 AUTHENTICATION, 
 
 of petition whether equivalent to attestation, 839. 
 AUXILIARY COMMISSION, 135.j and see " Commission," 5 
 AWARD. 
 
 debt on will support a commission, 91. 
 may be proved, 235. 
 
 but not if made after the bankruptcy, ib. 
 AWARDING COMMISSION. 
 
 distinction between awarding and issuing commission, 114. 
 
 B 
 
 BAIL, 
 
 discharged by proof against the principal, 189. 
 
 debt may now be proved against, though not fixed till after their bank- 
 ruptcy, 287. 
 may prove debt against principal, though they do not pay the debt till 
 after the commission, 292. 
 
 or may stand in the place of the creditor, if he has proved, 291. 
 bankrupt not protected from arrest by, 541. 
 as to enlarging time for his surrender in discharge of, ib. 
 when not discharged by the certificate of their principal, 601. 
 aliter, if certificate allowed before they are fixed, ib 
 may in that case apply for an exoneretur, 602. 
 when an issue will be granted, ib. 
 in error not entitled to relief, ib. 
 when not discharged by bankrupt's certificate under a second cc«n- 
 
 mission, ib. 
 how affected by bankrupt's omission to plead his certificate, 620. 
 BAILEE. 
 
 of goods for a special and limited purpose not a case of mutual credit, 707. 
 BAKER. 
 
 may be a bankrupt, 27. 
 BALANCING ACCOUNTS, 724.; and see « Set-off," 7. 
 BANK-STOCK. 
 
 buying and selling not a trading, 57. 
 BANKER. 
 
 liable to bankruptcy, 22. 
 
 stopping payment does not alone amount to an act of bankruptcy, 60. 
 
 commission against should be executed speedily, 122. 
 
 proof on a special agreement between two banking-houses as to exchange 
 
 of their respective notes, 26 1 . 
 short hills do not pass to his assignees, 429. 
 
 when indorsed by the customer, and disposed of by the banker con- 
 trary to good faith, ib.
 
 INDEX. 919 
 
 BANKER — contimied. 
 
 order for delivery of against provisional assignee, 435. 
 bills discounted with pass to his assignees, ib. 
 so bills taken on exchange of acceptances, 430. 
 
 except when consideration fails, ib. 
 when bills paid in generally, must be given up by assignees, ib. 
 as to his authority to discount, 431. 
 when bills entered short, must be given up, ib. 
 
 aliter, when paid in as cash, ib. 
 but whatever way paid in, if entered as bills, do not pass, ib. 
 
 notwithstanding they are indorsed by the customer, 432. 
 indorsement prima facie evidence of discount, ib. 
 as to right to retain bills arising from a general, or a limited, authority to 
 
 discount, ib. 
 holders of outstanding acceptances have no strict claim to the short 
 bills, 453. 
 
 but Lord Chancellor will render their claim available, 434. 
 
 except when, ib. 
 as to balance of stock appropriated to answer a particular claim, 435. 
 has a general lien 482. 
 payments by, when not protected, 677. 
 where entitled to rehef on a bill of interpleader, 684. 
 solicitor cannot act as banker, 866. 
 BANKER'S NOTES, 
 
 a good petitioning creditor's debt, though bought in for less than their 
 amount, 90. 
 
 may he proved under commission, 262. 
 how proveable when bought up after the bankruptcy of the bankers, 251. 
 BANKER'S CHECK, 
 
 not q/" i/se^ evidence of a petitioning creditor's debt, though paid, and in 
 hands of drawer, 90. 
 BANKRUPT. 
 
 derivation of the word, 1. 
 how considered by the old law, 2. 
 how treated by the existing law, lb. 
 number of statutes respecting, 4. 
 
 as to power of commissioners over, 148.; and see " Commissioners" 2, 
 I. Duties of, and of his Surrender, 507. 
 penalty incurred by not surrendering, ib. 
 when in prison, may be brought before commissioners, 508. 
 Lord Chancellor may enlarge the time for surrender, ib. 
 may surrender before the forty-second day, 509. 
 consequences of omission to surrender, ib. 
 
 must be wilful to render it a felony, ib. 
 
 when a fresh meeting will be ordered to take surrender, ib. 
 
 or commission superseded to prevent a prosecution, 510. 
 
 when Lord Chancellor will not interfere, ib. 
 
 how order for fresh meeting to be construed, 511. 
 petition to enlarge time must be supported by affidavit, ib. 
 disability of bankrupt before surrender, ib. 
 must deliver up his books and papers, 512. 
 and attend assignees to make out his accounts, ib. 
 
 allowance for such attendance, 513. 
 in case of default may be committed by commissioners, ib. 
 
 3 N 4
 
 920 INDEX. 
 
 BANKRUPT — cordimed. 
 
 Duties of, and of his Surrender. 
 
 duty to attend the commissioners when required, 515. 
 
 II. Of the Banh-upfs Examination, 513. 
 required to discover all his estate and eiFects, ib. 
 penalty in case of concealment or embezzlement, 514. 
 as to his refusal to answer questions, ib. 
 
 may be examined on oath by commissioners, ib. 
 
 and imprisoned if he does not fully answer, 515. 
 commissioners may adjourn the examination, ib. 
 bankrupt may inspect his books, &c. ib. 
 
 must deliver in a written statement of his estate and effects, 516. 
 as to power of Lord Chancellor to limit the examination, 517. 
 as to compelling an answer from bankrupt which would criminate or 
 
 prejudice himself, 150. 517. 
 assignees have no power to stop the examination as to certain points, 518. 
 
 III. Of the Bankrupt's Answers, 
 
 when general answers will not be sufficient, 519. 
 
 Perrot's case, ib. 
 
 when bankrupt may answer " to the best of his remembrance and 
 
 belief," 520. 
 a positive answer not necessarily a satisfactory answer, 522. 
 general rule as to sufficiency of answer, 523. 
 as to answering a question embodying a fact, 524. 
 commissioners cannot delegate their authority to take bankrupt's 
 
 answer, ib. 
 
 IV. Of committing the Bankrupt, and of the Remedies for his Discharge, 525. 
 both the question and answer must be specified in the warrant, ib. 
 
 the Court may look at the whole of the examination, 526. 532. 
 whether commissioners should be influenced by extrinsic evidence, ib. 
 what is a cause for commitment, ib. 
 
 what not, ib. 
 where there should be a supplemental warrant, 528. 
 where bankrupt refuses to be sworn, ib. 
 warrant should pursue the words of the statute, ib. 
 what is a bad conclusion of it, ib. 
 
 what the proper one, 529. 
 whether a commitment bad in part is bad in toto, ib. 
 as to time of making the commitment, 530. 
 
 when answer of bankrupt would only tend to criminate himself, com- 
 mittal good, ib. 
 when bankrupt absolutely refuses to answer, ib. 
 bankrupt may apply for mandamus to commissioners to be further 
 
 examined, ib. 
 remedy for his discharge by habeas corpus, ib. 
 
 when notice should be given of the application, 531. 
 
 after issuing habeas corpus, commissioners may make a fresh war- 
 rant, ib. 
 
 when bankrupt will be discharged, 151. 532. 
 
 affidavits in explanation of his conduct not receivable, ib. 
 
 when warrant insufficient inform merely. Court will recommit, ib. 
 except when, ib. 
 
 what are mere matters oi form, 555. 
 when commissioners not liable for committing bankrupt, ib.
 
 INDEX. 921 
 
 BANKRUPT —eo7itim(ed. 
 
 Of covimitling the Bankrupt, ^-c. 
 
 what bankrupt should do when desirous to complete his examin- 
 ation, 534. 
 
 penalty on gaoler for suffering bankrupt to escape, ib. 
 V. Of his Rights and Privileges, 535. 
 
 1. Of his Privilege from Arrest, ib. 
 for what period so privileged, ib. 
 
 when he does not lose it by refusing to surrender, 536. 
 if in prison not protected from subsequent detainers, ib. 
 
 but where arrest illegal, all detainers bad, 540. 
 until actual surrender, privilege confined to going to surrender ib. 
 if examination enlarged, for what period privilege continues 537, 
 where bankrupt attends without a summons, 558. 
 where commissioners adjourn sine die, ib. 
 where time for surrender expired, but order obtained, ib. 
 how protected after surrender, if summoned by commissioners, 559. 
 
 on attending a petition for leave to surrender, ib. 
 privileged, whether the debt is proveable or not, ib. 
 
 whether upon an attachment under an award or a decree ib. 
 how privileged when an action directed to try the bankruptcy, ib. 
 surrender no protection from being retaken after an escape, 540. 
 when privileged from arrest at suit of the Crown, ib. 
 not protected from being taken by his bail, 541. 
 
 as to enlarging time for surrender in discharge of his baU, ib. 
 mode of proceeding to be discharged from arrest, 542. 
 
 entitled to immediate discharge, when in custody at suit of a cre- 
 ditor proving, 184. 542. 
 
 or when creditor petitions to prove, 545. 
 
 2. Of his Right to Maintenance, 543. 
 
 only entitled to it until he passes his examination, ib. 
 not justified in appropriating, of his own authority, any part of his 
 effects for that purpose, 544. 
 
 3. Of the Bankrujji's Allowance under the Commission, 544. 
 when he pays 10s. in the pound, 5 per cent., ib. 
 
 when 12s. 6d., 1l. \0s. per cent., ii, 
 
 when 15*., 10 per cent., ib. 
 
 when he does not pay 10s., discretionary, ib. 
 
 whether bankrupt entitled to allowance before a final dividend 545. 
 
 qiuBre, if estate only just sufficient to pay 10s. in the pound, ib. 
 
 as to refunding allowance, when once received, ib. 
 must obtain his certificate before the dividend to claim allowance 546. 
 when the right to the allowance vests, 546. 
 allowance free from creditor's right to interest, ib. 
 
 under second commission, ih. 
 
 to partners under a joint commission, ib. 
 
 one partner now entitled to, though the other has not ob- 
 tained his certificate, 547. 
 
 where bankrupt deprived of all right to, 548. 
 
 4. Of his Right to the Surplus, 548. 
 
 assignees required to account for the surplus, ib. 
 
 but creditors first entitled to interest, ib. 
 
 bankrupt may inspect and impeach the accounts of assignees 549, 
 
 when surplus of real estate goes to the heir, ib.
 
 922 INDEX. 
 
 BANKRUPT — continued. 
 Of his Right to the Surplus. 
 
 of personal estate when to the next of kin, 549, 
 when real estate, part sold, and part contracted to be sold at bankrupt's 
 
 death, whether heir or executor entitled, 550. 
 when bankrupt a partner in two bankrupt firms, how surpkis to be 
 
 apphed, ib. 
 where the solvent partner entitled to an account of the surplus, 551. 
 5. As to Right of uncertificated Bankrupt to acquire and retain Property, ib. 
 may claim all property not claimed by assignees, ib. 
 
 as to property acquired by his personal skill and labour, ib. 
 creditors, not being assignees, have no right to take after-acquired 
 
 property, 552. 
 when may apply for certificate under second commission, 584. 
 
 VI. Of Actions by and against an uncertificated Bankrupt, 552. 
 when he may bring trespass or trover against his assignees, ib. 
 when estopped from bringing an action, 553. 
 
 what is not an estoppel, 554. 615. 
 
 not permitted to sue his debtors, to try the validity of the commission, 555. 
 may sue for after-acquired property if assignees do not interfere, ib. 
 but cannot sue any one acting by their authority, ib. 
 
 or one who obtains a surrender of their interest, 556. 
 or who is required by them to pay the debt to them, ib. 
 cannot be discharged under- Insolvent Act until three years in cus- 
 tody, 612. 
 when he may sue his assignees for work and labour, ib. 
 
 or a creditor for receiving after a composition the full amount of a 
 
 bill, ib. 
 may sue as a trustee for a debt assigned before his bankruptcy, 557. 
 when liable to costs of an action, ib. 
 
 when required to give security for costs, 557. 
 
 when proceedings by will be stayed till costs of a former action 
 paid, ib. 
 mode of relief when action brought against bankrupt for a debt proved, 558. 
 where venue may be laid in an indictment against, ib. 
 what is material evidence, ib. 
 what is not a variance, ib. 
 
 VII. Of Suits in Equity by and against an uncertificated Bankrupt, 559. 
 where bankrupt may sue in name of his assignees, ib. 
 
 where demurrer allowed for want of necessary allegations, 560. 
 
 where on the ground of the proper proceedmg being by petition, iA. 
 where a bill retained until proper parties are added, ib. 
 where suit entertained, notwithstanding a plea of bankruptcy, ib. 
 when a bankrupt may petition in forma 2)au2:)eris, 561. 
 cannot in general be sued in equity, ib. 
 
 except where bill prays a discovery, ib. 
 N. B. — As tt) the competency of the bankrupt and his wife as wit- 
 nesses, see " Evidence," 6. 
 BANKIIUPTCY. 
 
 what persons liable to as traders, 20. 
 
 peers, ib. 
 
 members of the House of Commons, ib. 
 
 clergymen, qucsre, ib. 
 
 public officers, ib.
 
 INDEX. 923 
 
 BANKRUPTCY — continued. 
 who not liable, 
 infant, 20. 
 married woman, 21. 
 
 unless a separate trader according to the custom of London, 21. 
 as to a lunatic, 22. 
 
 a person attainted, ib. 
 proceedings in distinguished from proceedings in the Court of Chan- 
 cery, 9. 
 act of. See " Act of Banhruptcy" 
 BARGAIN AND SALE, 
 
 of bankrupt's real estate by commissioners to assignees, 348. 
 should be enrolled without delay, 549. 
 
 enrolment has no relation back to the date in bankruptcy, ib. 
 therefore extent binding before enrolment, though issued after 
 
 the date, 695. 
 one case where bargain and sale before bankruptcy held good, 
 though not enrolled till afterwards, ib. 
 does not relate back to the act of bankruptcy, 550. 
 only operates on estates of which bankrupt possessed at the date, ih. 
 but passes a vested contingent interest, ib. 
 and a right of action, ib. 
 BARON AND FEME. See « Wife." 
 BARTER, 
 
 of goods a good payment, 676. 
 BASE FEE, 
 
 in what case assignees take, 352. 
 BASTARDY BOND, 
 
 bankrupt's liability on not discharged by certificate, 601. 
 BIDDINGS, 
 
 at sale, when they may be opened, 552. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES, 
 drawing and re-drawing when a trading, 29. 
 
 when not, 38. 
 taking a bill on acceptor who has no effects, does not prevent creditor 
 
 from suing out commission on original debt, 90. 
 note made before, though indorsed after, bankruptcy, a good petitioning 
 creditor's debt, 96. 
 
 so a bill not due, without deducting discount, ib. 
 aliter, on an exchange of acceptances, 97. 
 
 so a bill, though paid by acceptor after the drawer's bankruptcy, 97. 
 aliter, if it is an accommodation bill, ib. 
 when necessary to prove presentation and notice of dishonour, ib. 
 drawer not estopped by proof of the holder from suing acceptor, 187. 
 As to Proof of under the Commission. 
 
 holder may prove full amount against all parties, 259. 
 
 except against the party from whom he took the bill, ib. 
 
 can then only prove the actual balance, ib. 
 after receiving part can only prove for the balance, 240. 
 
 or after a declaration of dividend under another commission, ib. 
 but if part received after proof, entitled to a dividend on the 
 
 whole, 241. 
 where in one case permitted to prove the whole after payment 
 of part, ib.
 
 924; INDEX. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES — continued. 
 As to Proof of under the Commissio7i. 
 
 bills, though not due, may be proved, 241. 
 though discounted may be proved in full, 262. 
 
 so bankers' notes bought in for less than their amount, ib. 
 when charges of protest proveable, ib. 
 consequential damages, ib. 
 re-exchange, 26.3. 
 interest, ib. 
 Objections to Prouf 242. 
 illegal consideration, ib. 
 statute of limitations, ib. 
 ■when another bill given in payment, ib. 
 compounding with acceptor, 243, 510. 
 
 unless a surety, 243. 
 want of notice of dishonour, ib. 
 bill payable to a fictitious payee in what case, 244. 
 
 on a contingency, 245. 
 want of proper stamp, ib. 
 when not indorsed, as against whom, ib. 
 
 when an unindorsed bill considered a purchase, and when a pledge, 247. 
 when a jmrchase, neither bill, nor original debt, can be proved against 
 
 the person transferring it, ib. 
 when a 2}ledge, original debt proveable, if bill turns out bad, ib. 
 
 but if of any value, bill should be sold, and creditor prove 
 for balance, 248. 
 when bill only fo7'gotte7i to be indorsed, may be indorsed afterwards, ib. 
 when not accepted by writing on the bill, 246. 
 
 except in case of afu7-eigti bill, ib. 
 when bill lost, proveable on giving an indemnity, ib. 
 when object of transfer merely deposit, holder can only prove for the 
 
 real debt due, 249. 
 when holder in proving excepts a bill as a security, estopped from after- 
 wards saying it was not a security, ib. 
 indorsement 2}ri'nd facie evidence of absolute transfer, 250. 
 as to bills indorsed by agent for the purpose of being discounted, ib. 
 indorser may prove against acceptor, though bill taken up by him after 
 the comviissio7i, ib. 
 but not a party who was not liable on the bill before the com- 
 mission, ib. 
 but i7idorsee may prove a bill indorsed after the commission, 251. 
 so bankers' notes, though bought up after his bankruptcy, may be proved 
 
 by the holder, ib. 
 difference as to rights of holder, whether bill negotiated before or after 
 
 it is due, ib. 
 after proof of several bills, if one paid in full, must be deducted from 
 
 proof, 252. 
 when bill taken up for the honor of the drawer can be proved against 
 acceptor, 253. 
 Accovunodation Bills, when proveable, ib. 
 not between the original parties, ib. 
 
 but bona, fide holder not affected by original want of consideration, ib. 
 fl/ito-, if holder, when he took it, kneiu'xi was a mere accommodation 
 bill, ib.
 
 INDEX. 925 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES — continued. 
 Accommodation Bills, luhen proveable. 
 
 except where drawn by a third person who has effects in the 
 hands oi one of the parties, 255. 
 party lending his name on a bill substantially a surety, ib. 
 when entitled to benefit of holder's proof, 254. 
 former disability attached to him, ib. 
 
 but may now prove, though he pays the bill after the commission, ib. 
 when acceptor treated as a surety, 255. 
 
 when entitled to prove against drawer, though not paying bill 
 till after drawer's bankruptcy, ib. 
 surety paying off a note after holder has received a dividend, holder 
 bound to account, 256. 
 Cross Bills, when proveable, ib. 
 former practice as to proof, ib. 
 rule now, that party applying to prove must first take up his own bills, 
 
 257. 
 in an exchange of acceptances for the same sum, no proof allowed of any 
 
 payment on the creditor's own acceptance, ib. 
 what is evidence of one bill being given in consideration of the other, ib. 
 one party paying his own acceptance may prove the counter one, 258. 
 when both parties bankrupt, and bills proved under both commissions, 
 
 dividend paid by one estate not proveable against the other, ib. 
 whether proof to be made by the creditor estate on the debtor estate of 
 the bills, or of the cask balance, ib. 
 
 where cash balance alone proveable, 259. 
 where cash balance not proveable, 260. 
 giving an acceptance proveable against the acceptor, a good consideration 
 
 for a bill, 261. 
 proof on a special agreement between two banking houses as to exchange 
 of their respective notes, ib. 
 As to reputed ownership in, 
 
 bill deposited bt/ bankrupt with a third person for a particular purpose 
 
 passes to the assignees, 386. 
 so a bill deposited with a bankrupt for the like purpose does not 
 pass, 741. 
 
 in an action against them for the proceeds, whether necessary to 
 prove that they knew of the specific appropriation, ib. 
 within the enactment as to reputed ownership, 405. 
 accommodation acceptance in hands of drawer at his bankruptcy does 
 
 not pass to his assignees, 423. 
 nor short bills in a bankers' hands, 429. ; and see " Banker." 
 when indorsement and delivery of a bill a good payment, 676. 
 
 when the acceptance of a bill, ib. 
 where a subsequent indorsement of a bill relates back to the delivery, 689. 
 As to the Right of Set-off on Bills and Notes, 718. 
 
 acceptance in the hands of a third person, a case of mutual credit 
 between such person and the acceptor, 708. 
 
 so an acceptance not payable till after the act of bankruptcy 
 of the drawer or payee, 706. 
 distinction, as to right of set-off against a bankrupt, between an indorse- 
 ment before and after his bankruptcy, 718. 
 
 bill indorsed before can be set off against a debt, though accruing 
 after the indorsement, ib.
 
 926 INDEX. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES — continued. 
 As to the Right of Set-off on Bills and Notes. 
 
 but not if indorsed after the bankruptcy, 718. 
 
 so an indorser taking up a bill after the bankruptcy of the 
 
 acceptor cannot set it off' against the assignees, 719. 
 oiitis lies on indorsee to shew indorsement made before the bank- 
 ruptcy, ib. 
 
 what is presumptive evidence of this fact, ib. 
 in the case of cross-acceptances, holder must shew that the obligation to 
 pay subsisted before the bankruptcy, ib. 
 
 or that there was a mutual credit in the origin of the bills, 720. 
 acceptor paying a composition on a bill may set off the full amount 
 against the drawer, ib. 
 BILLS OF LADING ; and see " Stoppage in transitu." 
 
 alteration of the law as to possession and transfer of, 462. 
 
 holder of now to be deemed the true owner of the goods, unless the person 
 
 dealing with him has notice to the contrary, ib. 
 how an assignment of by consignee formerly affected the rights of con- 
 signor, 465. 
 held to be negotiable by indorsement, 464. 
 indorsement in blank may be filled up by the holder, ib. 
 when indorsed with notice to indorsee that goods have not been paid for, 
 indorsee has only the rights of original consignee, 465. 
 
 this notice extended to notice of such circumstances as prevent 
 the bill of lading from being fairly and honestly assignable, ib. 
 how indorsement operates in law, 468. 
 
 when it has relation back to a previous assignment of the goods, 690. 
 where engagement to indorse equivalent to actual indorsement, ib. 
 but where unindorsed, or nothing equivalent to indorsement, holder can- 
 not transfer the bill of lading, ib. 
 notwithstanding indorsement, vendor may stop goods where vendee 
 has transferred the bill of lading to his factor merely to sell the 
 goods, 469. 
 but qiicere, whether this point would not now be differently decided, 470. 
 BILL OF SALE. See « Ship." 
 BLEACHER, 
 
 may be a bankrupt, 26. 
 BOND, 
 
 may be proved against all parties to it, 235. 
 
 when assigned should be delivered up to assignee, 423. 
 
 assignor must join in proof, 2.36. 
 
 payable on demand, when proveable without demand, ib. 
 
 to replace stock, how proveable, ib. 
 
 to retransfer within three years, assignees not entitled to have three 
 years to do so, 237. 
 voluntary bond how proveable, ib. 306. 
 
 when bond given for arrears of a voluntary bond, 237. 567. 
 bail bonds proveable if forfeited before bankruptcy, 237. 
 
 qucBre, if forfeited after bankruptcy, 238. 
 bond to indemnify lessee from covena-nts in a lease not proveable, ib. 
 payment of interest on after certificate implies a new contract, 625. 
 BOND TO LORD CHANCELLOR, HO.; and see " Commission,"!. 
 as to amount, ib. 
 as to execution of it, ib.
 
 INDEX. 927 
 
 BOND TO LORD CUAl^CELLOR — continued. 
 
 as to assignment of it when commission maliciously sued out, 134.; and 
 see " Commission" 6. 
 BOOKS, 
 
 destroyed or falsified by bankrupt render certificate void, 594. 
 BOTTOMRY BOND, 
 
 obligee may claim under before contingency happens, 507. 
 BREAKING PRISON, 
 
 an act of bankruptcy, 81. ; and see " Aci of Bankruptcy" 15. 
 BREWER, 
 
 may be bankrupt, 27. 
 BRICKMAKER, 
 
 when a trader, 30. ; and see " Trading" 
 BROKER; and see " Factor." 
 
 liable to bankruptcy, 22. 
 
 not prohibited by law (though bound in a penalty) from dealing on his 
 own account^ 306. 
 
 but if, in the same transaction, he acts both as broker and principal, then 
 the debt is void, ib. 
 
 embezzling a draft and buying other securities with the proceeds, such 
 securities do not pass to his assignees, 428. 
 BUILDER, 
 
 may be a bankrupt, 25. 
 BUTCHER, 
 
 the like, 27. 
 BUTLER, 
 
 to the king, or an inn of court, not liable to bankruptcy,,';'?. 
 BUYING AND SELLING. See " Trader." 
 
 C 
 
 CALENDERER, 
 
 may be a bankrupt, 26. 
 CALICO PRINTER, 
 
 has a general lien, 484. 
 CAPIAS UTLAGATUM, 
 
 whether bankrupt after certificate can be discharged from arrest on, 623. 
 CARPENTER, 
 
 may be made bankrupt, 25. 
 CARRIERS ; and see " Stoppage in Transitu" 
 
 possession of not a case of reputed ownership, 423. 
 
 any usage of does not prevent vendor's right to stop in transitu, 461. 
 
 not entitled to a general lien, except upon a special agreement, 484. 
 
 where money remitted by, passes to the remitter's assignees, 677. 
 CATTLE SALESMAN, 
 
 may be a bankrupt, 26. 
 CERTIFICATE. 
 
 1, Of the Signature of the Creditors, 563. 
 
 requisite proportion in number and value, ib. 
 
 when a creditor may sign by power of attorney, 564. 
 
 creditors required to add the date of their signatures, ib. 
 
 bankrupt may inspect proceedings, to ascertain the debts proved, 565. 
 
 should not be signed before last examination, ib. 
 
 creditors not compellable to sign, ib. 
 
 cannot sign when not entitled to a dividend, 566.
 
 928 INDEX. 
 
 CERTIFICATE — continued. 
 Of the Signature of the Creditors, 
 one partner may sign for himself and his copartners, 566. 
 
 but not one trustee, ib. 
 a receiver cannot sign, ib. 
 an executor of a creditor may, ib. 
 
 but cannot sign twice, though he proves a debt in his own right, ib. 
 should not sign without consent oi cestui que trusts, 561. 
 when bankrupt is executor of a ci'editor, cannot sign without an 
 * order, ib. 
 petitioning creditor cannot sign without proving at a public meeting, ib. 
 money given to a creditor to sign renders certificate void, ib. 
 
 although it is given without the knowledge of the bankrupt, 568. 
 so money given to withdraw a petition against certificate, 569. 
 not illegal creditors signing merely to render bankrupt a competent 
 
 witness, 569. 
 creditor may be sued to recover back money paid for signing, 570. 
 when signed by fictitious creditors, what ' proof necessary to impeach 
 
 it, ib. 
 contract or security to induce a creditor to sign, void, ib. 
 privity of the bankrupt immaterial, ib. 
 
 note given to a creditor (though he had not proved) for a pre-exist- 
 ing debt, void, 571. 
 this principle extended to the case of an insolvent, or a deed of com- 
 position, ib. 
 2. Of the signatiu'e of the Commissioners, 572. 
 how they must certify bankrupt's conformity, ib. 
 must have previous proof of creditors' signatures, ib. 
 required to certify whether any certificate under former commission, ib. 
 how their signatures must be attested, 573. 
 their discretion as to signing subject to no control, ib. 
 as to supplemental certificate, 574. 
 commissioners confined to consideration of bankrupt's conduct since the 
 
 bankruptcy, ib. 
 where proceedings under the commission are lost, ib. 
 5. Of the Allowance by the Chancellor, and of opposing and recalling the 
 Allowance, 515, 
 previous affidavit of bankrupt, ib. 
 and notice in the Gazette, ib. 
 allowance stayed when a petition lodged against certificate, 576. 
 when allowed, must be registered, ib. 
 exempted from stamp duty, ib. 
 
 secretary of bankrupts required to search if any former certificate, ib. 
 discretionary power of the Chancellor as to allowance, ib. 
 may be allowed after the death of bankrupt, 577. 
 who may oppose the allowance, ib. 
 
 any creditor who has proved, though under 20/., ib. 
 
 a mortgagee, when, 578. 
 
 when a receiver, ib. 
 
 when a partner of the bankrupt, ib. 
 
 when a creditor who has not proved, ib. 
 
 or who has taken the bankrupt in execution, 579. 
 what a preliminary objection to hearing petition, ib. 
 no objection that opposing creditor has signed certificate, ib. 
 distinction between suspending, and altogether refusing, certificate, ib. 
 causes for suspension, 580.
 
 INDEX. 929 
 
 CERTIFICATE — continued. 
 
 Of the Allowance by the Chancellor, Sfc. 
 
 when creditors sign too precipitately, 580. 
 when commission taken out under a wrong description, ih. 
 when no dividend has been made, 581. 
 what not a good cause, ih. 
 
 question of sequestration depending in the Scotch courts, ih. 
 
 objection merely to the time of proving a debt, ib, 
 
 opposition of creditors who only claim a balance due, ih. 
 
 petition pending to supersede the commission, ib. 
 
 new creditors proving after signature by commissioners, ih. 
 
 creditor waiting the result of a trial, 582. 
 
 omission of commissioners to certify a former bankruptcy, ih^ 
 
 bankrupt uncertificated under a former commission, ih. 584. 
 
 accounts of bankrupt being merely in a slovenly state, ib. 
 
 except when, ih. 
 bankrupt retaining money as assignee under a different commis- 
 sion, ib. 
 issuing of a joint commission, 583. 
 as to disallowance, where declared by law to be void,ih. 
 mere suspicion not a good ground, ib. 
 when an issue directed to try the controverted fact upon which the 
 
 validity of certificate depends, 584. 
 when Lord Chancellor will order commissioners to review it, ih. 
 
 when influenced by their signatures, 58 5. 
 suffering fictitious debts to be proved, substantial cause for dis- 
 allowance, ib. 
 keeping a lottery office, or obtaining goods under false pretences,, 
 before the banhruptcy, no grounds for absolute disailowancej, 
 ib. 
 when certificate will be recalled, 586. 
 
 when any fraud is practised by the bankrupt in obtaining it, ih. 
 or in any of the proceedings under the commission, ib. 
 or any previous conduct of bankrupt brought to light, that would 
 render the certificate void, ib. 
 but not recallable in every case where it might have been stayed, ih. 
 4. Practice on Petitions to stay the Certificate, 587. 
 petition must be signed by all the petitioners, 588. 
 
 except in case of a partnership, or absence from the kingdom, ii. 
 how each signature to be attested, ib. 
 
 attestation by agent to the solicitor insufficient, ib. 
 when petition must be presented, ib. 
 petition before last examination bad, 589. 
 petition must be 'personally served on bankrupt, ib. 
 mode for bankrupt to pursue when not duly served, ih. 
 when a special order as to service will be made, ib. 
 when affidavit of service must be filed, 590. 
 affidavit of the truth of facts alleged in petition, ib. 
 general order as to filing affidavits, ib. 
 meaning of the term " filing an affidavit," 591. 
 when affidavits in answer should be filed, ib. 
 where the strictness of the rule as to filing was departed from, ih. 
 petition cannot be withdrawn without leave, 592. 
 when dismissed, generally with costs, ib. 
 5 O
 
 930 INDEX. 
 
 CERTIFICATE —coM^mKed 
 
 Practice on Petitions to stay the Certificate. 
 when petition may be heard, 592. 
 practice when petition presented in vacation, ib. 
 
 5. When the Certificate is void, 593. 
 
 loss by gaining or wagering in one day 20/., or within one year 200/., 
 ib. 
 
 party opposing must elect tuhich loss he will substantiate, ib. 
 loss of 200/. within one year by stock-jobbing, 593. 
 destroying or falsifying books or accounts, 594. 
 concealing property, ib. 
 bankrupt being privy to proof of false debt, ib. 
 
 6. Effect of the Certificate, 595. 
 
 discharges all claims proveable under commission, ib. 
 
 but not partners or co-sureties of the bankrupt, ib. 
 privilege of proof, and discharge of bankrupt, co-extensive, 596. 
 
 except costs on a verdict after bankruptcy in an action ejc con- 
 tractu, ib. 
 discharges claim of surety though arising after bankruptcy, ib. 
 
 only debts actually oioing by bankrupt at his bankruptcy, 597. 
 joint debts as well as separate, 608. 
 consideration for an annuity, ib. 
 does not bar the crown, ib. 
 nor discharge a collateral covenant of indemnity, ib. 
 
 as a covenant, or bond of indemnity against covenants, in a lease, 
 
 598. 
 nor lessee's liability on a lease, unless assignees accept the term, 
 ib. 
 
 or bankrupt deliver the lease up to the lessor, ib.; and see 
 « Lease." 
 whether a discharge of liability for payments made on cross-acceptances, 
 
 600. 
 no discharge of a promise to pay a weekly sum for an illegitimate 
 child, ib. 
 
 or of a bastardy bond, 601. 
 no operation until actual allowance, ib. 
 
 does not therefore invalidate an execution previously levied, 607. 
 no relation back, 601. 
 
 not a discharge of bail if fixed before allowance, ib. ; and see " Bail." 
 enables bankrupt to justify as bail, 605. 
 discharges a debt contracted abroad, ib. 
 
 if proveable, and the creditor had an opportunity of proving, ib. 
 debt contracted in Scotland, ib, 
 whether a discharge of debt contracted in the colonies, 604. 
 operation of a foreign certificate, 605. 
 
 semble, no discharge of an English debt, 606. 
 effect of not decided upon a summary application, 607. 
 in what country a debt held to be contracted, 605. 
 operation of a discharge under the Scotch bankrupt act, 607. 
 operation of certificate where bankrupt discharged under a former com- 
 mission, 608. 
 
 where the former commission has been superseded, 610. 
 no discharge of cognovit signed before the bankruptcy, where judgment 
 not entered up till after certificate, ib.
 
 INDEX. 931 
 
 CERTIFICATE — continued. 
 Effect of the Certificate. 
 
 under third commission (where 15.?. in the pound not paid under second) 
 
 not void, but only voidable, 611. 
 after compounding with creditors, ib. 
 where money has been fraudulently misapplied, 612. 
 does not estop bankrupt from disputing the commission against a 
 
 stranger, 615. 
 where bankrupt is assignee of another bankrupt estate, ib. 
 of no effect unless registered, ib. 
 
 7. Of pleading the Certificate, and of the Evidence to support or defeat 
 
 it, 614. 
 when bankruptcy and certificate may be pleaded, ib. 
 
 form given by the statute must be followed, ib. 
 
 may be pleaded puis darrein continuance, 615. 
 
 as to counsel's signature to plea, ib. 
 
 averment of conformity, ib. 
 
 as to pleading it in equity, 616. 
 
 as to pleading it when sued by a surety, ib. 
 
 general plea of bankruptcy puts the whole merits in issue, 617. 
 
 a foreign certificate should be specially pleaded, 618. 
 what certificate affords presumptive proof of, ib. 
 
 plaintiff cannot impeach the commission, id. 
 
 what should be proved when commission issued against bankrupt 
 by a different name, 617. 
 what proof necessary where certificate pleaded under second commis- 
 sion, 619. 
 
 what plaintiff bound to prove to defeat it, ib. 
 
 what secondary evidence admissible of a former certificate, ib. 
 where bankrupt neglects to plead his certificate, 620. 
 where, after pleading it, he neglects to produce 'it,ib. 
 consequences of omission to plead it as to bail, ib. 
 how registry of certificate proved, 621. 
 allowance of by Lord Chancellor needs no proof, ib. 
 as to costs when bankrupt sued by an executor, 618. 
 
 8. Of discharging a certificated Bankrupt, 621. 
 
 when arrested, may be discharged on common bail, ib. 
 
 but officer cannot discharge without a judge's order, 622. 
 
 when an order for discharge will be refused, ib. 
 
 when an issue directed to try the commission, id. 
 
 as to relief on an audita querela, ib. 
 
 when imprisonment is in rhe nature of a contempt, 623. 
 
 when in custody on a capias utlagatum, ib. 
 
 when bankrupt jointly sued with others, ib. 
 
 9. Of the Bankrupt's Liability on a new Promise, 624. 
 promise must be in writing, and signed by bankrupt, ib. 
 plaintiff need only declare on the original consideration, ib. 
 
 security given by bankrupt after bankruptcy for part of a debt not proved, 
 valid, ib. 
 
 so for a debt proved, if after certificate, 625. 
 payment of interest on a bond proveable implies a new contract, ib. 
 promise good, though made before certificate, ib. 
 what is a conditional, and what an absolute promise, 626, 
 general declarations not sufficient, ib. 
 
 5 O 3
 
 932 INDEX. 
 
 CERTIFICATE— contimied. 
 
 Of the Bnnkrupfs Liability on a new Promise. 
 as to liability to aiTest on subsequent promise, 626. 
 what act of the creditor a waiver of the promise, 627 
 as to solicitor's bill for obtaining certificate, 888. 
 CESTUI QUE TRUST, 
 
 should join with the trustee in proof, 224, 
 CHANCELLOR LORD, 
 
 nature and origin of his jurisdiction in bankruptcy', 5. 
 
 1. Over Parties to the Commission, 7. 
 
 enforced by the general jurisdiction of the court of Chancery, 7. 
 confined to transactions relating to the bankruptcy, ib. 
 no power to order contribution as to costs, 8. 
 
 or to determine a question where the bankrupt's estate has no in- 
 terest, ib. 
 but any thing necessary to the question of proof gives him jurisdiction, ib. 
 power to send a case for the opinion of a court of law, ib. 
 or to direct an issue, or a bill to be filed, 9. 
 to order payment of the solicitor's and messenger's bills, 12. 
 or the transfer of stock standing in bankrupt's name as trustee, ii. 
 jurisdiction both legal and equitable, 9. 
 by what rules guided, ib. 
 over commissioners, 10. 
 to suspend execution of assignment, i5. 
 to remove assignees, ib. 
 
 cannot, sitting in bankruptcy, discharge a bankrupt on a summary ap- 
 plication, but only under a writ oi habeas corpus, ib. 
 power to issue that writ in vacation, ib. 
 cannot compel commissioners to declare a party bankrupt, ib. 
 but only to proceed in their judgment, ib. 
 
 cannot in a proceeding by bill reverse the order of the commis- 
 sioners, ib. 
 
 nor grant an injunction to restrain bankrupt from proceed- 
 ing at law against the assignees, 1 1 . 
 cannot interfere in a proceeding bel'ore a judge of oyer and ter- 
 miner, ib. 
 order of not subject to the review of any other court, ib. 
 writ of prohibition will not lie to him, ib. 
 
 qucere, whether action at law may be brought for costs awarded by Chan- 
 cellor in bankruptcy, ib. 
 no power to appoint a receiver in bankruptcy, 12. 
 nor (sitting in bankruptcy) to order an infant heir to convey, ib. 
 may order commission to be proceeded in, though petitioning creditor's 
 
 debt prove insufficient, 93. 
 jurisdiction extends over all persons coming in under the commission 
 
 by way o( proof, joet if ion, or otherwise, 15. 
 jurisdiction not determined by a supersedeas, ib., 832. 
 
 2. Over Strangers to the Commission. 
 
 no jurisdiction over a person claiming nothing under the commis- 
 sion, 15. 
 
 unless he comes in of his own accord, ib. 
 
 as by ap[)lying for and obtaining an order in bankruptcy, ib. 
 or by petitioning for relief, ib. 
 no jurisdiction to order restitution to a 7nere claimant of property, 16. 
 unless a clear case of ownership, ib.
 
 INDEX. d39 
 
 CHANCELLOR, LORD — contimied. 
 Over Strangers to the Commission. 
 
 as in the case of short bills, 16. 
 after a claim established may order compensation, as well as restitution of 
 
 property, ib. 
 cannot order a bill to be indorsed to a stranger, qiuere tamen, 16. 
 cannot restrain the assignees from suing a stranger, 17. 
 no jurisdiction over a second mortgagee not claiming under commission, 18. 
 as to jurisdiction where a creditor has proved, 17. 
 
 where commissioners have found a sum due to a creditor on balancing 
 
 accounts, ib. 
 over a purchaser under the commission, ib. 
 in the case of waste, ib. 
 
 in cases between the lessor and the assignees of a lessee, 19. 
 in the case of a solvent partner, ib. 
 over strangers guilty of a contempt, ib. 
 
 or practising a fraud upon the great seal, ib. 
 CHILDREN, 
 
 when a child admitted a creditor under his father's commission, 234. 
 not unless there is some contract for wages, ib. 
 debts from a bankrupt to his children watched with jealousy, ii. 
 CHOICE OF ASSIGNEES. See " Assignees." 
 CHOSE IN ACTION, 
 
 of bankrupt passes to assignees, 385. 
 
 within the enactment as to reputed ownership, 405. 
 
 if when assigned the security is not delivered up, 422. 
 when duly assigned before the bankruptcy, action to recover it must be in 
 the name of the bankrupt, 743. 
 CHURCH RATES, 
 
 assessment for, a good petitioning creditor's debt, 95. 
 CLAIM, 
 
 where allowed by a creditor, 307. 
 when to be struck out, 308. 
 where an alien enemy may claim, ib. 
 
 how claim operates as notice of dissent from an illegal contract, i6. 
 does not entitle a creditor to oppose certificate, 581. 
 CLERGYMAN, 
 
 how far liable to bankruptcy, 20. 
 
 when debt contracted by will not support a commission, 100. 
 when bankrupt, his living is liable to a sequestration, 360. 
 CLERKS, 
 
 right to six months' wages when master bankrupt, 234. 
 CLOTHIER, 
 
 may be a bankrupt, 27. 
 COFFEE-HOUSE KEEPER, 
 
 a trader, 25. 
 COGNOVIT, 
 
 not discharged, where judgment not signed till after certificate, 610.; 
 and see Addenda. 
 COLLECTOR. See " Taxes." 
 COLLIERY, OWNER OF, 
 
 when considered a trader, 50. 
 COLONEL, 
 
 of a fencible regiment not liable to bankruptcy, 55. 
 
 9 o
 
 934- INDEX. 
 
 COLONIES, 
 
 as to conveyance of property in to assignees, 348. 
 operation of certificate on a debt contracted in, 604. 
 COMMISSION. 
 
 1. Of issuing the Commission, 106. 
 who may petition for one, ib. 
 practical directions as to striking a docket, ib. 
 
 when two parties apply together, they must draw lots, 107. 
 but if one only prepared, he is entitled to the commission, ib. 
 when commission superseded,any creditor may strike fresh docket, 1 08. 
 when variance in name, practice at bankrupt office, ib. 
 affidavit cannot be resworn, ib. 
 
 docket used for an improper purpose, a contempt, 109. 
 as to statement in the affidavit for the docket, ib. 
 irregularity in issuing no ground at law for invalidating commission, ib. 
 commission not invalid because act of bankruptcy committed after swear- 
 ing affidavit, 110. 
 petition must agree with the affidavit, ib. 
 amount of bond required to be given, ib. 
 supplemental affidavit when permitted, 111. 
 as to execution of bond, ib. 
 
 an infant cannot execute it, ib. 
 where husband and wife are petitioning creditors, ib. 
 where partners or assignees, ib. 
 as to sealing commission, ib. 
 
 should be sealed at the Jie:ct immediate public seal, 112. 
 
 omission of clerk at bankrupt office will not prejudice the right of 
 
 priority, 113. 
 when a shorter time will be limited for sealing, ib. 
 when first creditor entitled to have commission sealed, notwith- 
 standing a previous countermand, ib. 
 must be sealed after act of bankruptcy, ii. 
 where sealed by the Chancellor in the middle of the night, 1 14. 
 when sealed, commission then said to be awarded,ib. 
 the issuing of the commission and the adjudication a matter of right, ib. 
 proceedings will not be stayed before commission opened, i6. 
 
 except in the case of fraud, 1 1 5. 
 when publication in the Gazette restrained, ib. 
 to whom commission directed, ih. 
 as to the issuing of a country commission, ib, 
 to whom it may be directed, ib. 
 when may be directed to attornies, ib. 
 when commissioners are falsely described, 116. 
 ivhere it should be executed, ib. 
 no commissioner must be a creditor, ib. 
 
 practice where there is a competition for a country, and for a town 
 commission, 117. 
 any person may sue out a commission, ib. 
 as to the description of the bankrupt, ib. 
 
 variance when material, 118. 
 how the trading should be described, ib. 
 when commission may be amended, 119. 
 
 when there must be a new docket, ib. s 
 
 when opened, cannot be amended, ib. 
 quaere, as to the inflexibility of this rule, ib.
 
 INDEX. 9SS. 
 
 COMMISSION — continued. 
 Of issuing the Commission. 
 
 relaxed when error arose from the act of the officer, 119. 
 when commission should be executed, 120. 
 
 when country commission supersedable for want of execution, ih. 
 necessity for speedy execution of commission against bankers, 121. 
 what deemed a sufficient proceeding, ib. 
 
 not necessary that adjudication should have appeared in Gazette, ib. 
 when strictness of order as to execution of commission relaxed, 121. 
 when time will be enlarged for adjudication, 122. 
 after neglect to prosecute commission, same petitioning creditor 
 cannot sue out another without special leave, ib. 
 
 where the delay is caused by the bankrupt, 123, 
 who may supersede for want of execution, ib. 
 
 2. Of the Effect of the Commission, 123. 
 
 distinction between a commission and an execution, ib. 
 commission unopened considered as an execution, 124. 
 commission does not abate suits pending, ib. 
 
 nor revoke a suljmission to arbitration, ib. 
 
 nor a decree for a receiver, ib. 
 
 does not work a forfeiture in a lease, ib. 
 
 nor a comj)lete revocation of a devise, ib. 
 when it invalidates payments, 125. 
 of no effect when not in legal operation, ib. 
 when it abates by the death of the party, ib. 
 does not abate by a demise of the crown, ib. 
 
 3. Of a second Commission, 126. 
 strictly void, and supersedable, ib. 
 when permitted to stand, ib. 
 
 as to a third commission, 127. 
 
 when a Scotch sequestration has a preference over a commission, ib. 
 
 4. Of a joint Commission, 128. 
 
 former practice as to commissions against partners, ib. 
 
 joint creditors may sue out commission against one or more partners, 
 
 129. 
 may be superseded as to one, and stand against the rest, ib. 
 sustained, though debt contracted after a noiiiinal dissolution of part- 
 nership, 129. 
 when a joint commission preferred to a prior separate commission, ib. 
 not supersedable on the ground of a prior separate commission in 
 
 Ireland, 130. 
 when prior separate commission superseded, petitioning creditor al- 
 lowed the costs and restored to his right of election, ib. 
 when separate commission impounded to give effect to a joint one, 
 151. 
 when separate commission will be preferred, ib. 
 where joint creditors guilty oi laches, ib. 
 separate commission will not be superseded, when bankrupt has 
 committed a felony by not surrendering to it, 132. 
 where a separate commission issues (after a joint commission) against the 
 
 other partners, ib. 
 as to the order for distinct accounts under a joint commission, ih. 
 joint commission no ground for staying a bankrupt's certificate under a 
 separate one, 583. 
 
 .5 4
 
 '936 INDEX. 
 
 COMMISSION — continued. 
 
 3. Of renewed and auxiliary/ Commissions, 133. 
 when a commission may be renewed, ib. 
 
 when it cannot, ib. , 
 
 when auxiliary commissions may be issued, ib. 
 6. Remedy whei'e Commission is maliciously sued out, 134, 
 when bond will be assigned, ib. 
 
 assignment conclusive proof of malice, 135. 
 when Chancellor will direct a previous inquiry, ib. 
 when bond will be ordered to stand as a security, ib. 
 in action on bond, fraud or malice need not be averred, ib. 
 what plea held bad, ib. 
 not within the 8 & 9 W. 3. c. 11. s. 8., 156. 
 as to proof of allegation that commission was superseded, ib. 
 what is a fatal variance in the description of the commission, ib. 
 when action on the case the preferable remedy, ib. 
 
 but that is a waiver of the action on the bond, U). 
 when Chancellor will impound the proceedings in bankrupt office, 137. 
 as to authority of Judge to order copies, ib. 
 
 how conspiracy to issue a fraudulent commission may be prosecuted, ib. 
 COMMISSION TO EXAMINE WITNESSES, 
 
 when it will be granted, 827. 
 COMMISSIONERS. 
 
 N. B. As to the duty of the commissioners in adjudicating the bankruptcy, 
 see " 0]ieni7ig Commission." 
 
 1. Of their general Jurisdiction, 143. 
 nature of their jurisdiction, U). 
 number of the commissioners, ib, 
 power of imprisonment, 144. 
 
 no power to commit for a contempt, ib. 
 or for punishment, ib. 
 not considered a court of justice, ib. 
 
 protection of witnesses attending them, H5.; and see " Witness." 
 their discretionary power sutijcct to no control, 10. 145. 
 power to c\punge a proof, 146. 
 what fees entitled to, ib. 
 
 when bound to attend and act under the commission, ib. 
 when their authority assisted by that of the great seal, 147. 
 incapable of purchasing bankrupt's property, ib. 336. 
 
 except under an order, ii. 
 solicitor to commission, or a creditor, cannot be a commissioner, 116. 147. 
 appeal lies from their decision to the Lord Chancellor, ib. 
 
 but their order cannot be reversed by bill, 10. 
 when considered y"««c^i o^cK), H8. 
 
 auth(jrity not determined by the death of the king, or of the bankrupt, ib. 
 when competent as a witness, 801. 
 
 2. Of their Poiver over the Bankrupt, 148. 
 authority to compel surrender, ib. 
 power to examine the bankrupt, 14<). 
 power of commitment, ib. 
 
 liability for illegal commitment, ib. 
 as to warrant of commitment, 150. 
 
 no power to conniiiL for not answering a question which would cri- 
 minate the bankrupt, ib.
 
 INDEX. 937 
 
 COMMISSIONERS — continued. 
 Of their Power over the Bankrtijit. 
 when bound to commit, 150. 
 when bankrupt ma}' be discharged, 151. 
 without commissioners being liable, ib, 
 commissioners cannot delegate their authority, ib. 
 whether they may be influenced by extrinsic evidence, ib. 
 
 3. Of their Power over the Ban/crupt^.'i Pi-oj^erti/, 152. 
 extends to all the real and personal property, ib. 
 
 as to issuing the warrant of seizure, ib. 
 
 as to seizing property in Ireland or Scotland, 153. 
 
 have only a power, not an estate in it, 548. 
 
 4. Of their Potver over other Persons, 153. 
 authority to compel attendance of witnesses, ib, 
 
 witness bound to attend, though alleging himself incompetent, 154. 
 
 or though he has already attended for the same purpose, ib. 
 trustees bound to produce the trust deed, ib. 
 power to summon persons suspected of having bankrupt's property, ib, 
 
 or supposed to be indebted to bankrupt, iO. 
 
 to call for books, &c. 155. 
 
 to issue warrant to compel attendance, ib. 
 
 to examine any persons concerning the bankrupt or his estate, ib. 
 
 and to commit in case of refusal to answer, ib. 
 as to their incidental right of examination, 156. 
 
 such right not in general restrained by the Lord Chancellor, 
 157. 
 party bound to answer, though he may expose his own defective 
 title, ib. 
 
 but not compelled to criminate himself, 158. 
 or destroy his own proceedings, ib. 
 to what bankrupt's wife may be examined, ib: 
 power to examine creditors the same as other persons, 159. 
 power to summon assignees before them, ib. 
 cannot issue siibpcenas, ib. 
 when not empowered to issue summons, must proceed by affidavit, 160. 
 
 5. Of Actions and other Proceedings against them, 1 64. 
 
 Court upon the trial may look at tiie whole of the examination, ib. 
 no action sustainable without one month's previous notice, 165. 
 
 nor evidence admissible of any other cause of action than that in 
 notice, ib. 
 commissioner may tender amends, and plead the same in bar, ib. 
 if plaintiff nonsuit, &c. commissioner entitled to the like costs as under 
 
 the general issue, ib. 
 may pay money into Court, ib. 
 action must be brought within three months after the act committed, 
 
 166. 
 may plead general issue, and give special matter in evidence, ib. 
 defendant entitled to double costs, ib. 
 when conmiissioners liable to an action, ib. 
 
 not if the act done be within the scope of their authority, ib. 
 
 though done through an erroneous judgment, ib. 
 
 not for a mere formal defect in the warrant, 167. 
 where onus of proof lies on the plaintiff, ib. 
 w'hen commissioners have a right to indemnity from assignees, 167. 859.
 
 938 INDEX* 
 
 COMMISSIONERS — continued. 
 Of Actions, Sfc. against them. 
 how far commissioners' warrant evidence of the imprisonmentj 167. 
 proceedings stayed until costs of a former action paid, ib. 
 when they may make affidavits in answer to a petition reflecting on them, 
 168. 
 COMMITMENT; mAsee " Comrtmsioners." 
 
 of commissioners cannot be for a contempt, or by way of punish- 
 ment, 144. 
 general power of in case of refusal to answer, 155. 
 of bankrupt, 149; and see "Bankrupt" 4. 
 
 when it disqualifies him from petitioning to supersede, 817. 
 COMPANIES. See " Public Companies." 
 COMPENSATION, 
 
 under an act of parliament, passes by assignment, 388. 
 COMPOSITION, 
 
 party to bill discharged by, 24.7. 
 operation of certificate after, 611. 
 COMPOSITION CONTRACT, 
 
 first meeting of creditors to receive the offer, 81.5. 
 nine-tenths in number and value of creditors binding, ib. 
 second meeting, ib. 
 
 when Lord Chancellor may supersede the commission, 814. 
 as to creditors below 20/. ib. 
 creditors residing abroad, ib. 
 
 penalty on a creditor accepting a higher composition, ib. 
 general order of Lord Eldon as to holding the meetings, and for re- 
 gulating the conduct of the commissioners, ib. 
 decisions of the Scotch Courts, 815. 
 COMPOSITION DEED, 
 
 where wholly invalid, does not destroy the petitioning creditor's debt, 89. 
 where creditor not bound by, 297. 
 
 whore he may prove for remainder of his debt, ib. 
 
 if instalments not previously received, must prove for his whole 
 
 debt, 298. 
 wiiere deed contains an actual release, can then only prove for out- 
 standing instalments, ib. 
 where a party bound by his own misrepresentation in inducing a creditor 
 to compound, 299. 
 COMPOSITION FRAUDULENT; and see "Act of Bankruptcy," 17. 
 
 an act of bankruptcy, 83. 
 COMPOUNDING WITH PETITIONING CREDITOR, 102. 
 CONCEALMENT OF BANKRUPT'S EFFECTS, 
 penalty on persons guilty of, 384. 
 reward to persons discovering them, ib. 
 where bankrupt guilty of, renders the certificate void, 594. 
 CONCERTED ACT OF BANKRUPTCY, 42. 
 
 a good cause for applying to supersede commission, 822. 
 CONSIDERATION, 
 
 inadecjuacy of, an objection to the proof of a debt, 306. 
 boml given for arrears of a voluntary bond, deemed a bond for valuable 
 consideration, 307. 
 CONSIGNEE AND CONSIGNOR. See « BUI of Lading," " Stoppage in 
 Transitu."
 
 r 
 
 INDEX. 939 
 
 CONSPIRACY, 
 
 to issue a fraudulent commission, how offenders prosecuted, 157. 
 CONSTRUCTION, 
 
 of statute declared to be favourable for creditors, 182. 
 CONSTRUCTIVE NOTICE, 696. 
 CONSTRUCTIVE DELIVERY, 
 
 of goods, 707. 
 CONTEMPT, 
 
 commissioners cannot commit for, 144. 
 
 Lord Chancellor has jurisdiction to punish all persons guilty of, 19. 
 
 obstruction of the messenger a contempt, ib. 172. 
 
 or giving a bond of indemnity against the consequences, ii. 
 corrupt bargain with solicitor as to issuing the commission, 10.5. 
 where arrest Of witnesses attending commissioners amounts to one, 
 160. 
 where not, 161. 
 CONTINGENT DEBT, 
 
 not a good petitioning creditor's debt, 90. 
 formerly not proveable unless contingency had happened, 212. 
 proveable now either before or after the contingency, 215. 
 qucBre, whether a guarantee for payment of goods proveable, where the 
 credit has not expired, 214. 
 CONTINGENT INTEREST; and see " PossibilUy." 
 CONTRACTOR, 
 
 not liable to bankruptcy, 35. 
 CONTRIBUTION ; and see « Jssig?iees:'' 
 
 when creditors hable to contribute to expenses of assignees, 181. 
 Court will not order as to payment of costs, 855. 
 CONVERSION, 
 
 what acts amount to in trover against the sheriff, 747. 
 what is a joint act of, 757. 
 CONVEYANCE; and see "Assignment." 
 
 when fraudulent, an act of bankruptcy, 63,; and see " Act of Bank- 
 ruptcy" 1 1 . 
 COPYHOLD, 
 
 fraudulent surrender of an act of bankruptcj^ 75; and see " Act of Bank- 
 
 rwptcif" 12. 
 how to be conveyed by the commissioners, 354. 
 
 purchaser to compound with lord for fine, and then to be admitted, 355. 
 when he may enter without admittance, ib. 
 
 vests in purchaser when admitted, by relation to bargain and sale, ib. 
 when a bankrupt dies before admittance and before bargain and sale, ib. 
 
 commissioners may nevertheless execute a valid conveyance, 556. 
 though mortgaged by bankrupt without surrender, assignees not entitled, 
 357. 
 COPYRIGHT, 
 
 passes to assignees, 389. 
 CORPORATION may prove by agent, 194. 
 COSTS, 
 Proof for, 
 when judgment recovered before bankruptcy, proveable though not taxed, 
 
 197. 274. 
 not proveable if incurred after bankruptcy, ib. 
 
 \{ judgment signed after bankruptcy, though verdict before, 275. 
 except in an action ex contractu, 276.
 
 940 INDEX. 
 
 COSTS —continued. 
 Proof for, 
 
 when proveable if judgment signed before commission, 277. 
 in no case proveable where verdict after act of bankruptcy, ib. 
 
 nor in tort, though verdict be before, if judgment after the comnois- 
 sion, ib. 
 costs of a nonsuit proveable, if judgment entered up before commis- 
 sion, 278c 
 in some cases not proveable, though barred by the certificate, 278. 
 as in an action ex contractu, ib. 596. 
 
 so wpon 2L scire facias aker the bankruptcy to revive a judgment, 278. 
 qucerc, where defendant brings a writ of error after the bankruptcy, 
 927. 
 costs in chancery proveable where decree before bankruptcy, though not 
 taxed till afterwards, 280. 
 
 1. Of issidng the Commission, 845. 
 
 petitioning creditor personally answerable for, 102. 173. 845. 
 
 of the messenger, from whom recoverable, 173. 
 
 when reference io the Master to tax, 845. 
 
 as to petitioning creditor's right to reimbursement, 846. 
 
 petitioning creditor liable for, though no assets, ib. 
 
 2. Of Costs subsequent to the Choice of Assignees, 847. 
 may be now taxed by commissioners, ib. 
 
 when by a Master, ib. 
 assignees liable for, \h. 
 
 must keep an account of, 848. 
 of a person summoned before commissioners, ib. 
 of a witness, ib. 
 
 distinction between the two cases, 849. 
 when ordered, may be recovered in assumpsit, ib. 
 of application to be discharged from an arrest, ib. 
 of a joint creditor in conducting examinations, 850. 
 3. On Petition. 
 
 when commissioners liable for costs, 148. 
 costs on petition to stay certificate, 592. 850. 
 on petition for a supersedeas, 102. 130. 850. 
 as to bankrupt's exemption from, 850. 
 when not allowed costs, 851. 
 when ordered to pay costs, ib. 
 remedy for, when commission superseded, ib. 
 when petitioning creditor allowed costs of opposing the superse- 
 deas, 852. 
 
 where under separate commission allowed costs out of the joint 
 estate, ib. 
 when commission taken out against good faith, as to right of apply- 
 ing for a supersedeas, with a view to the costs, 853. 
 whore fraud alleged and not proved, petition dismissed with costs, ib. 
 where a feme sole marries after order for costs against her, as to 
 liability of husband, ib. 
 where costs not prayed, cannot be awarded, ib. 
 
 but may be given under the word crpenses, ib. 
 where Court has no jurisdiction, respondent entitled to costs, ib. 
 not given on a petition against the deliberate judgment of the commis- 
 sioners, ib. 
 
 but the costs of an issue, if directed, are allowed, 8^4.
 
 INDEX. 94 1 
 
 COSTS — continued. 
 On Petition. 
 when costs of the day will be allowed, 854. 
 
 can only be obtained by a special order, ib. 
 costs of an interlocutory order, ib. 
 
 for default of appearance, how obtained, ib. 
 petition dismissed with costs for defective attestation, ib. 
 for containing groundless imputations, ib. 
 when accompanied by a scamialous affitlavit, 855. 
 when relief provided by a general order, ib. 
 must be paid into Court upon exception to Master's taxation, ib. 
 no appeal against an order for costs only, ib. 
 
 aliter, when order for payment out of a particular fund, ib. 
 when several persons ordered to pa\-, Court will not order contribu- 
 tion, ib. 
 bankrupt liable to when guilty of fraud or vexation, ib. 
 
 when he petitions to surrender after time is expired, 856. 
 on a petition to remove an assignee, ib. 
 
 liability of the removed assignee, ib. 
 by joint creditors to prove, ib. 
 by an equitable mortgagee for a sale, ib. 
 against commissioners, 857. 
 whether costs awarded in bankruptcy can be sued for at law, ib. 
 4. Costs in Actions and Suits by and against Assignees and othei- Parties, ib, 
 assignees entitled to costs out of the estate, ib. 
 
 when notice given to dispute the bankruptcy, ib. • 
 
 not entitled when nonsuited, 858. 
 must pay costs of an action, though no assets, ib. 
 bound by C^ourt of Conscience act, ib. 
 as to staying proceedings by until payment of costs of former 
 
 action, ib. 
 liability of when sued by supplemental bill, 859. 
 party liable to when he defeats (by a formal objection) an action brought 
 
 by order of the Lord Chancellor, ib. 
 when double costs are given, ib. 
 commissioners' right to compensation for costs, ib. 
 when bankrupt personally liable for, ib. 
 
 when proceedings by will be stayed till costs of former action 
 
 paid, 860. 
 not entitled to costs as against executors, ib. 
 
 when sued as executor, and pleading a false plea, may be taken 
 in execution for costs, notwithstanding certificate, '861. 
 costs in an action ex contractu follow the debt, ib. 
 when petitioning creditor liable for, 105. 
 5. When Scciiritt/ for Costs toil/ be required, 861. 
 
 when an uncertificated bankrupt sues as trustee for his assignees, ib. 
 refused on the ground merely of the plaintiff" being in prison, 862. 
 or of his poverty, or insolvency, ib. 
 
 where a bankrupt brings an action for his own benefit, ib. 
 where one only of two joint plaintiffs is abroad, ib. 
 preliminary proceedings, where defendant entitled to security, ib. 
 application for security should be made early, 863. 
 
 defendant cannot require security if he pleads the plaintiflTs bank- 
 ruptcy, ib. 
 application for in equity too late after answer, ib.
 
 942 INDEX. 
 
 COUNSEL, 
 
 as to right of a party to, when examined before commissioners, 162. 
 
 signature of to plea of certificate, 615. 
 COUNTER PETITION. 
 
 when no necessity for, 827. 
 COUNTER SECURITY, 289.; and see " Sureties," 2. 
 COUNTRY COMMISSION, 115.; and see '' Commission," \ . '' Supersedeas," I. 
 
 for what cause superseded, 120, 809. 
 COURT OF REQUESTS, 742. 
 COURT, PAYMENT OF MONEY INTO, 165, 744. 
 COVENANT, 
 
 in action of for rent, assignees not bound to set forth their title, 740. 
 
 not to assign a lease, &c., 124. 590, et seq. 
 COW-KEEPER, 
 
 not a trader, 34. 
 CREDITOR ; and see " Proof." 
 
 as to right of proof of, and his general rights and duties, 1 76. 
 
 may be examined by the commissioners, 159. 
 
 bound to answer their inquiries, 181. 
 
 when attending to prove, privileged from arrest, 160. 
 
 when not competent as a witness, 799.; and see " Evidence" 1. 
 
 cannot be a commissioner, 147. 
 CREDITOR ABROAD, 
 
 proof by, 194. 
 
 how he may vote in the choice of assignees, 314. 
 or on the composition contract, 815. 
 CREDITOR'S ELECTIOx\ ; and see " Election." 
 CROSS BILLS, 256.; and see " Bills of Exchange." 
 CROWN ; and see " Extents." 
 
 may issue process for recovery of its debt before assignment, 490. 
 
 operation of an extent, ib. 
 
 as to necessity of provisional assignment, ib. 
 
 as to process for different claims of, 494. 
 
 not barred by bankrupt's certificate, 597. 
 
 D 
 
 DAMAGES, 
 
 where contingent, cannot be proved, 280. 
 
 but proveable if judgment obtained before the commission, 281. 
 
 qucere, whether proveable, if verdict only before bankruptcy, ib. 
 
 proveable, where creditor may waive the tort, and bring money had and 
 
 received, 282. 
 where claims founded on a contract, though sounding in damages, 
 proveable, 283. 
 
 accountable receipt for navy bills proveable, ib. 
 where damages, though arising on a contract, not proveable, 284. 
 DEATH, 
 
 of bankrupt, when it abates the commission, 125. 140. 
 
 operation of before admittance to copyholds, and before bargain and 
 
 sale, 335. 
 certificate may be allowed after, 577. 
 of one partner, how it affects the right of set off, 709. 
 of assignee does not abate an action or suit, 729, 743.
 
 INDEX. 94(3 
 
 DEALER AND CHAPMAN, 
 
 what evidence may be given under these words, 767. 
 DEBT OF PETITIONING CREDITOR; and see " Petitioning Creditor." 
 DEBTS, 
 
 proof of, 175 ; and see " Proof." 
 
 owing to bankrupt vest in assignees, 383 ; and see" Assignment," p. II. s.2. 
 
 when assigned to a purchaser, notice should be given to the debtor 493 
 DECLARATION OF INSOLVENCY, 
 
 filing it an act of bankruptcy, 82 ; and see " Act of Bankruptcy" 16. 
 DECLARATIONS OF BAN liRUPT, 
 
 when evidence, 763, 770, 797. 
 DECREE, 
 
 for a receiver not superseded by a commission, 124. 
 DEL CREDERE COMMISSION, 
 
 difference it makes as to the right of set-ofF, 714, 715; and see "In- 
 surance Broker." " Factor." 
 DELIVERY OF GOODS. See " Reputed Owner," " Stoppage in transitu," 
 
 " Assignment," 6. 
 
 fraudulent, an act of bankruptcy, 75, 439.; and see "Act of Bank- 
 ruptcy" 13. 
 DEMAND AND REFUSAL, 
 
 of warrant, 171. 
 
 in trover, when necessarj' to be proved, 736. 
 DEMISE OF THE CROWN, 
 
 does not abate commission, 125. 
 DENIAL, 
 
 as to necessity of to establish an act of bankruptcy by keeping house, S3. ; 
 and see " Act of Bankruptcy" 5. 
 
 cases of, 54, et seq. 
 DEPARTING DWELLING HOUSE, 46.; and see « Act of Bankruptcy" 3 
 DEPARTING THE REALM, 45.; and see " Act of Bankruptcy," 1. 
 DEPOSIT. See " Equitable Mortgage." 
 DEPOSITIONS ; and see " Proceedings." 
 
 party not entitled to a copy of his deposition, 1 63. 
 
 but Lord Chancellor may permit him to have a copy, ib. 
 
 assignees entitled to the custody of, 163. 
 
 what considered as proceedings under the commission, 164. 
 
 no lien upon them for any costs or fees, ib. 
 
 as to their admissibility in evidence, 784. et seq.; and see " Evidence," S. 
 DESCRIPTION ; and sec " Commission," " Misdescriptio7i." 
 
 of bankrupt, 117. 
 
 of trading, 118. 
 DETAINER; and see " Arrest," " Lying in Prison." 
 
 where several detainers, what steps necessary before party is discharged, 161. 
 DEVISE, 
 
 commission does not operate as a complete revocation of, 124, 352. 
 DISCHARGE, 
 
 remedy for under a commitment of the commissioners, 530. ; and see 
 " Bankrupt," IV. 
 
 under an arrest during protection before surrender, 542. ; and see 
 " Bankrujit," V., 1. 
 
 a court of law has no power to discharge a defendant, against whom the 
 plaintiff sues out a commission, 100. 
 
 as to discharge from an arrest after certificate, 621.; and see " Certifi' 
 eaie" 8.
 
 g^i INDEX. 
 
 DISCONTINUANCE, 
 
 proof a discontinuance of action pending, 188. 
 no rule for necessar}^, ib. 
 
 of action before petition for a siqiersedcas, 820. 
 DISCOVERY, 
 
 when bill for does not lie against a creditor, 687. 
 
 lies against bankrupt as to his conduct before bankruptcy, 561. 728, 
 
 upon bill for, defendants not permitted to refer to their depositions, 
 729. 
 
 when bill for cannot be filed without leave, 827. 
 DISCOUxXT ; and see " Bills of Exchange," " Interest." 
 
 where not proveable under a commission against the vendee of goods, 
 when it was agreed to be allowed for prompt payment, 271. 
 DISPUTING COMMISSION ; and see " Evidence." 
 
 notice as to, 759. 
 
 by bankrupt, 758.; and see " Sitjjersedeas." 
 DISSOLUTION OF PARTNERSHIP, 638. ; and see " Partners," 2. 
 DISTRESS. See " Rent." 
 DIVIDEND, 
 
 1. Of the first Dividend, 497. 
 when should be declared, ib. 
 how order for to be drawn up, ib. 
 receipts for, 498. 
 
 assignees' accounts to be first audited, ib. 
 when assignees compellable to make it, ib. 
 
 how to compel them, ib. 
 may be postponed by Lord Chancellor, 499. 
 penalty on assignees keeping money in their hands, ib. 
 when a dividend must be reserved upon a claim, 500. 
 only to be paid on amount of a creditor's real debt, ib. 
 when may be retained, ib. 
 when must be refunded by creditor, .310. 500. 
 solicitor's charge for computing, 500. 
 whether assignee can set oil" against a dividend a debt due to himself, 
 
 501. 
 restriction as to when the banker to the estate is bankrupt, ib. 
 
 as to the purchase of, ib. 
 how an order i'or should be reversed, ib. 
 
 2. Of the second and final Dividend, 502. 
 
 when meeting to be appointed to declare a second dividend, ib. 
 
 second dividend to be final, except when, ib. 
 
 when creditors proving at meeting for, may receive the first, ib. 
 
 3. Of unclaimed Dividends, 503. 
 
 assignees must file an account of them at the Bankrupt Office, ib. 
 
 or liable to a penalty, ib. 
 how to be invested, 504. 
 when may be divided amongst the other creditors, ib. 
 
 4. How a Dividend is to be recovered, 504. 
 now only recoverable by j)elition, 505. 
 
 the order for the dividend sufficient to establish petitioner's case, ib. 
 when assignees not justified in delaying the payment, ib. 
 when a creditor entitled to interest on dividend, 506. 273. 
 effect of payment of dividend under a separate commission as to the 
 solvent partner, 656.
 
 INDEX. 945 
 
 DOCKET, STRIKING, lOC; and see " Commissmt," 1. 
 
 practical directions for, 106. 
 
 used for an improper purpose, a contempt, 109. 
 
 should not be struck inconsiderately, 110. 
 DOCK WARRANTS, 415.; and see " 'Reputed Ownership." 
 DORMANT PARTNER, 645. 710.; and see « Partners," 3. " Reputed 
 
 Ownership." 
 DOUBLE COSTS, 
 
 when party entitled to, 166. 172. 859. 
 DOWER; and see « Wife." 
 
 when bankrupt's wife entitled to, 370. 
 DRAWER. See « Bills of Exchange." 
 DROVER, 
 
 whether liable to bankruptcy, 26. 34. 
 DUBLIN, 
 
 port of considered a, foreign port, 420. 
 DYER, 
 
 may be a bankrupt, 26. 
 
 has only a special lien, luiless extended from local custom, 483. 
 or by a public notice, 484. 
 
 E 
 ECCLESIASTICAL BENEFICE, 362. ; and see « Power," " Advowson." 
 EJECTMENT, 
 
 by assignees bad, on a demise before the bargain and sale, 740. 
 ELECTION OF CREDITOR, 
 
 1 . To sue Bankrupt or prove under Commission : 
 petitioning creditor has no election of this kind, 101. 190. 
 former practice as to putting a creditor to his election, 183. 
 creditor must now relinquish an action before he proves, ib. 
 proof deemed an election, 184. 
 
 except in a joint action, as to the other defendant, ib. 
 or when commission superseded, ib. 
 distinction where action brought before, and where after proof, ib. 
 where before, proof is a relinquishment of every action, 185. 
 so a petition to prove, ib. 
 or obtaining an order for an inquiry, ib. 
 
 or accepting an assignment of a debt proved by another creditor, ib. 
 where creditor issued execution for costs after proving his debt, 
 
 186. 
 where a joint and separate creditor not concluded, ib. 
 where execution levied before bankruptcy, proof may be for re- 
 sidue, ib. 
 when action brought after proof for a distinct debt, creditor not concluded 
 
 by previous proof, 187. 
 how proof under second commission operates, ib. 
 proof does not affect the rights of third persons to sue bankrupt, ib. 
 
 as in the case of a surety, or another party on a bill of exchange, ib. 
 does not affect remedy against other persons jointly liable, 188. 
 no rule to discontinue action necessary before proof, ib. 
 when bankrupt is in actual custody at suit of the creditor, 189. 
 proof of creditor may be entered of record in the action, ib. 
 
 but cannot be pleaded, ib. 
 being chosen assignee merely will not prevent creditor from suing, ib. 
 proof operates in discharge of the bail, ib.
 
 346 INDEX. 
 
 ELECTION OF CREDITOR — continued. 
 To sue Ba7iJcriipt or prove under Comviission. 
 
 creditor after commission taking the body in execution, a conclusive 
 election, 190. 
 
 but not where defendant surrenders in discharge of his bail, 191. 
 not concluded where bankrupt taken in execution before commission, ib. 
 nor upon an attachment under a previous order of Court, ib. 
 landlord after proving cannot distrain, 192. 
 2. Of Proof by Creditor against joint or separate Estate: 
 
 when petitioning creditor not deprived of his election, 101. 130. G65. 
 where a joint creditor has an election, 652. ct seq. ; and see " Part- 
 ners^'' 4. 
 joint and several creditor must elect against one estate, 657. 
 where a creditor has no notice of a dormant partner, he may elect, G58. 
 so an obligee of a bond by mistake made only joint, instead of joint and 
 
 several, ib. 
 when the election must be made, ib. 
 when creditor concluded by proof already made, 659. 
 exceptions to the rule of compelling the party to elect, 660. 
 1st. where parties on a bill are separate firms, ib. 
 2d. where not distinct firms, but only individual partners, ib. 
 distinction whether holder knew this fact or not, 661. 
 where right to prove against both estates forfeited, 6G2. 
 by laches, ib. 
 
 by a deliberate election, ib. 
 where joint creditors on a dissolution of partnership have no election 
 
 against separate estate of continuing partner, ib. 
 where proof allowed against separate estates of .joint makers of a note, 
 
 665. 
 where the holder of a bill jointly indorsed by one partner for his separate 
 debt has no election against his separate estate, ib. 
 EMBLEMENTS, 558. 398. ; and see " Mortgage." 
 ENEMY'S COUNTRY ; and see " Alien Enemy." 
 
 creditor residing in not a good petitioning creditor, 92. 
 unless trading under a licence, ib. 
 
 or the residence is involuntary, ib. 
 contract to convey goods to, illegal, 306. 
 ENROLMENT. See " Bargain and Sale." 
 EQUITABLE MORTGAGE, 201. 357. See " Mortgage." 
 EQUITABLE SET-OFF, 720. See " Set-of," 6. 
 EQUITY OF REDEMPTION ; and see « Mortgage." 
 
 passes to assignees, 356. 
 ESCAPE, 
 
 out of prison or custody an act of l)ankrnptcy, 81.; and see " Act of 
 Bankruptcy" ] 5. » 
 
 ESTATE TAIL, 
 
 how to be conveyed by commissioners to assignees, 352, 
 where remainder-man in tail bankrupt, assignees take only a base fee, ib. 
 where bankrupt tenant in tail mortgages without suffering a recovery, 
 and then dies, assignees entitled free of the mortgage, 357. 
 ESTOPPEL, 
 
 when creditor not estopped by proof, 181. 
 when a party estopped by his own admissions, 782. 
 EVIDENCE, 
 
 in actions against commissioners where onus of proof lies on plaintifT, 167.
 
 INDEX. 9^7 
 
 EVIDENCE — continued. 
 
 how far their warrant is evidence of the imprisonment, 167. 
 to support or defeat the bankrupt's certificate, 618. et seq.; and see 
 " Certificate" 7. 
 What required to supjiort the commission in actions hy or against assignees, 
 756. 
 former practice as to proof upon the trial, 756. 
 no proof now of requisites to support the commission, unless previous 
 
 notice given to dispute them, 757. 
 provision as to notice in suits in equity, ib. 
 difference between the former and present enactments, id. 
 after what period the depositions are conclusive evidence, 758. 
 1. Where Notice is given to dispute the Commission, 759. 
 difference as to period limited for giving notice, ib. 
 no notice can be given in an action between third persons, ib. 
 but statute not confined to a case where the assignees are the only 
 
 defendants, 760. 
 ii<hen notice should be given, ib. 
 
 mode to be adopted when defendant omits to give notice, thougli intend- 
 ing to dispute, ib. 
 
 cannot without leave withdraw a plea and deliver it again with 
 
 notice, ib. 
 when terms will be tacked to such permission, ib. 
 as to service and proof of notice to dispute, 761. 
 
 how petitioning credrtor''s debt must be proved, ib. ; and see " Petitioning 
 Creditor." 
 
 where on a bond, ib. 
 
 on a bill of exchange, ib. 
 on a promissory note, 762. 
 on a banker's check, ib. 
 where notice given to prove the consideration for an acceptance, ib. 
 where petitioning creditor is the indorsee of a bill or note, 763. 
 as to acknowledgment of the debt by the bankrupt, ib. 
 
 entries in books, accounts, &c., 764. 
 deed of submission to an award, ib. 
 
 as to declarations of petitioning creditor being admissible against the 
 debt, 765. 
 liow the trading should be proved, 766. ; and see " Trading." 
 with respect to a farmer, ib. 
 
 what proof admissible under the words " dealer and chap7>ian," 767. 
 iiow the act of bankruptcy should be proved, 768. ; and see " Act of 
 Bankruptcy^ 
 
 of the beginning to keep house, and denial to a creditor, 769.; and 
 see " Act of Bankruptcy" 5. 
 
 admissibility of the bankrupt's declarations, 770. 
 proof of a fraudulent grant or conveyance, 771. ; and see " Act of 
 BaiiJa-ujylcy" 1 1 • 
 
 of n fraudulent transfer, 772. ; and see " Act of Bankruptcy" 1 .i, 
 oi lying in prison, ib. ; and see " Act of BankrujHcy," 14. 
 assignees not tied down to the proof of any specific act, 77.~. 
 
 except when an issue directed, ib. 
 where act of bankruptcy and commission are on same day, ib. 
 where commission against several partners, 7 74. 
 how the commission is to be proved, ib. 
 
 .■5 p 2
 
 948 INDEX. 
 
 EVIDENCE — continued. 
 
 Where Notice is given to dispute the Commission : 
 how the assignment, 775. 
 how the bargain and sale, 776. 
 2. Where Defendant is not entitled to give Notice to dispute, 777. 
 in what actions, and after what period, ib. 
 how far the depositions are conclusive evidence, ib. 
 deposition of petitioning creditor, 779. 
 5. Where no Notice has been given to dispute. 
 
 proof o? commission and assignment in this case sufficient, 780. 
 
 without further evidence of title of assignees, ib. 
 but infant defendants not bound by omission to give notice, ib. 
 as to undertakinii' on retaining the venue, ib. 
 strict proof (whether notice or not) required against the bankrupt, ib. 
 
 4. Where no Proof of the Title of the Assignees is necessary, 781. 
 upon any personal contract, where entitled to sue suo jure, ib. 
 upon any contract made with bankrupt after his bankruptcy, 782. 
 when a defendant is estopped by his own admissions, ib. 
 
 proof of a debt does not admit the validity of the commission, 783. 
 difference in this respect between a creditor and an assignee, 
 784. 
 what amounts to an admission by bankrupt of the validity of the 
 
 commission, ib. 
 plea of payment admits the title of assignees, ib. 
 
 5. Admissibility/ of the Depositions and Proceedings, 784. 
 formerly not receivable in evidence, 785. 
 
 may be recorded by order of the Lord Chancellor, ib. 
 when office copies admissible, 786. 
 
 depositions conclusive where commissioners had authority to inquire, ib. 
 as, to prove the precise time of the act of bankruptcy, ib. 
 
 the character in which the petitioning creditor claims his 
 
 debt, ib. 
 the amount of a debt proved, 787. 
 whether admissible against a stranger to the commission, ib. 
 not conclusive against the bankrupt, ib. 
 
 but examination of the bankrupt evidence against himself, 788. 
 so that of any other party, ib. 
 but not the examination of a third person against a party to the 
 
 suit, 789. 
 nor the examination of liankrupt taken in a different bankruptcy 
 
 against a creditor under his own commission, ib. 
 nor any examination against a creditor no party to the inquiry, ib. 
 deposition of a party not evidence/or himself, ib. 
 where an old witness allowed to refer to his deposition, 790. 
 as to right of opposite party to use the depositions on the trial, ib. 
 
 no general right of inspection, ib. 
 must come out of the proper custody before admissible, ib. 
 whether the solicitor is bound to produce them, ib. 
 Lord Chancellor may always order the production of them, 791. 
 
 6. Of the Comjictency of the Bankrupt and his Wife as Witnesses,'^. 
 bankrupt not competent to increase the fund, ih. 
 
 or support the commission, 793. 
 
 even on cross-examination, i,b. 
 
 incompetency under a second commission, 794.
 
 INDEX. 949 
 
 EVIDENCE —continued. 
 
 Of the Competency of the Bankrupt and his Wife as Witnesses, 
 
 incompetency confined to the affirming or disaffirming the bank- 
 ruptcy, 794. 
 how rendered competent, 792. 
 
 must previously liave obtained liis certificate, ib. 
 though uncertificated, may be called to diminish the fund, 795. 
 when certificated, competent for any creditor barred by the certificate, ib. 
 cannot, by pleading his certificate, be examined for a co-defendant, 796. 
 
 unless plaintiff' enters a nolle prosequi, ib. 
 bankrupt's ivife not competent to support the commission, ib. 
 
 when she has been admitted to prove a fraudulent preference, 797. 
 declarations of bankrupt before bankruptcy when admissible, ib. 
 when his letters admissible, 798. 
 7. Of the Competency of Creditors, Sfc. 799. 
 not competent to support the commission, or increase the fund, ib. 
 but competent to defeat the commission, 800. 
 creditor competent when he has sold his debt, ib. 
 
 to a certain e.xtent in a commission against a member of parlia- 
 ment, ib. 
 petitioning creditor not competent to support commission, 801. 
 
 alitbr, to defeat the commission, ib. 
 a party alleging himself to be a creditor should nevertheless attend, ib. 
 commissioner competent to support the commission, ib. 
 so an assignee releasing his interest, 802. 
 Evidence necessary in support of an action by an attorney on his bill, 891. 
 EXAMINATION BEFORE COMMISSIONERS, 
 of bankrupt. See " Bankriqit," 2, 3. 
 power of commissioners to examine other persons, 155. 
 incidental right of commissioners in examining a witness, 1 56, 
 when their examination will be restrained, 157. 
 party bound to answer, though it expose his own defective title, 157. 
 
 but not compelled to criminate himself, 158. 
 of creditors, 159. 
 of assignees, ib. 
 
 as to right of party examined to have counsel, 162. 
 when examination admissible in evidence, 788.; and see " Evidence," 5. 
 EXCHANGE, 
 
 trafficking in, a trading, 29. 
 EXCISE DUTIES, 
 
 lien of the crown for, 494. 
 
 only on those goods to which the duty attaches, 495. 
 therefore a general warrant to levy on all goods illegal, ib. 
 EXECUTION, 
 
 against the person prevents plaintiff" from suing out commission, 100. 
 distinction between a commission and an execution, 12,3. 
 cannot be sued out after proof of debt, 186. 
 
 but previous execution, where goods seized, not affected by proof, ib. 
 against the body after the commission a conclusive election not to prove, 
 190. 
 aliier, before the commission, 191. 
 when money levied by bankrupt under a previous execution passes to 
 
 assignees, 387. 
 levied more than two months before the commission, good, 692. 
 merely tested or delivered to sheriff' before bankruptcy, bad, 69J. 
 
 3 p 5
 
 950 
 
 INDEX. 
 
 EXECUTION — coutmutd. 
 
 so II delivery of the warrant to a shopnum of bankriii)t, 693. 
 relation of levy when the act of bankruptcy is by lying in prison^ ib. 
 where the levy and the act of bankruptcy on the same day, ib. 
 EXECUTION CUEDITOH, 
 
 not preferred when judgment by default or confession, 196. 693.; and 
 
 see " Addenda.'^ 
 when he may oppose the certificate, 579. 
 when put on the same footing as other creditors, 692. 
 EXECUTOR ; and see " Trustee" " Truat Property." 
 when liable to bankruptcy, 31. 
 
 when not, 38. 
 of a bankrupt, when he may sue out a commission, 92. 
 before probate a good petitioning creditor, 99. 
 mode of proof by, 195. 
 
 when bankrujjt, cannot prove against his own estate without an order, 
 222. 
 
 cannot prove if he has conunitted a devastavit, 223. 
 what may be proved where he exceeds his authority in the employ- 
 ment of the assets, 225. 
 no proof allowed when he does not go beyond his authority, ib. 
 where beneficially entitled to part of testator's property, how as- 
 signees may sue, 226. 
 
 and thougii he lias conmiitted a devastavit, his assignees nofe 
 liable to refund, ib. 
 where the husbanil of executrix admits assets, the amount may be 
 
 proved, ib. 
 where he pleads a false plea, costs not proveable, ib. 861. 
 trust property does not pass to his assignees, 437. 
 nor where his wife is an executrix, 438. 
 where executor as well as residuary legatee, ib. 
 where bankrupt entitled to administration, and neglecting to 
 obtain it, remains in possession several years, this a case of 
 reputed ownership, 439. 
 as to proof by an executor of a creditor, 226. 
 
 executor cannot sign a bankrupt's certificate twice, though he lias [)roved 
 a debt in his own right, .')66. 
 
 should not sign without consent oi' cestui que trusts, 567. 
 where i)ankrupt executor of a creditor, cannot sign without an 
 order, ib. 
 not liable to costs in an action against a bankrupt, 618. 860. 
 as to his right of set-otl^ 711; and see '' Set-off," 4. 
 debt on simp/c contract will not lie against him by assignees, 740. 
 of an attorney not liable for costs of the taxation of his bill, 887. 
 need not deliver a bill a month previous to an action, 896. 
 EXECUTORY CONTRACT, 
 
 whether a covenant to renew or grant a lease passes to the assignees, 367.- 
 
 not when lease for tiie personal acconunodation of bankrupt, 368. 
 when bankru[)t has agreed to jnirchasc lands, assignees may elect to fulfil 
 
 agreement, or not, 369. 
 when he has contracted to sell lauds, assignees entitled to the benefit of 
 
 the contract, ib. 
 assignees may adopt any contract of bankrupt, though made after the act 
 of bankruptcy, 370. 
 EXHIBIT, 
 
 when securities must be exhibited, 196.
 
 INDEX. 951 
 
 EXONERETUR, 
 
 when ordered to be entered in discharge of bail, 602. 
 EXPUNGING PROOF, 
 
 power of commissioners as to, 146. 509. 
 
 but does not prevent ah application to the Lord Cliaiicellor, 510. 
 creditor ordered to refnnd dividend after, ib, 
 when a proof may be expunged, ib. 
 
 where indorsee discharges acceptor without consent of assignees of 
 
 indorser, ib. 
 but proof against the principal not to be expunged by discharge of 
 the surety, 511. 
 as to service of petition to expunge where creditor abroad, ih. 
 EXTENT, 
 
 binds from the teste of the writ, 490. 694. 
 
 the debts, as well as the goods of bankrupt, 694. 
 operation of against one partner, 491. 
 when different property seized under. Crown has a right to elect out of 
 
 which it will be satisfied, ib. 
 goods seized under, and sold under a venditioni exponas^ assignees not 
 
 concluded, 491. 
 restrictions as to extents in aid, ib. 
 
 to what debts their operation confined, 492. 
 when an immediate debtor to the Crown may sue one, 494. 
 bankrupt act not to affect the provisions of 57 G. 3. c. 54., 493. 
 limiting clause of 57 G. 5. c. 54. intended to be repealed, ib. 
 where an extent issues the same day on which the assignment is exe- 
 cuted, the Crown preferred, 694., qucere tamen. 
 preferred to the bargain and sale if issued before the latter isinroUed, 695. 
 
 FACTOR, 
 
 liable to bankruptcy, 26. 
 
 when a good petitioning creditor, 92. 
 
 possession of, not a case of reputed ownership, 426. 
 
 though goods sold and reduced into money, if money be in different 
 
 bags, 427. 
 so if notes or bills received instead of money, ib. 
 so buying stock for his principal, though in his own name, ib. 
 where property substituted for the property of the principal, ib. 
 though acting under a del credere commission, rights of principal 
 not altered, 428. 
 when principal should give notice to purchaser not to pay, ib. 
 may now pledge goods or bill of lading to what extent, 467. 480. et seq. 
 where bill of lading indorsed to him by a vendee merely to sell the goods, 
 whether the vendor may stop in transitu, before the goods come to the 
 hands of the factor, 469. 
 assignees of, cannot perform the duties entrusted to him by his principal, 
 
 470. 480. 
 has s. general lien for the balance due to him, 479. 
 so upon the jon'c-c of goods sold by him, ib. 
 
 but not to affect property delivered to him for a particular pur- 
 pose, 480. 
 no lien for a debt due before he became a factor, ib. 
 5 p 4
 
 952 INDEX. 
 
 FACTOR— continued. 
 
 where goods consigned to him after an act of bankruptcy of his principal, 
 answerable to the assignees, 691. 
 
 when a purchaser may set off against the principal a debt due from the 
 factor, 717.; and see " Set-off" 4, 
 FALSE DEBTS, 
 
 bankrupt privy to proof of, renders certificate void, 594. 
 FALSE ENTRIES, 
 
 in books or accounts by bankrupt render certificate void, 594. 
 FALSE PRETENCES, 
 
 when obtaining goods under, no ground for refusing the certificate, 585. 
 FARMER, 
 
 not a trader, 52. 
 
 except when, 35. 
 FEES, 
 
 of commissioners, 146. 
 FELONY ; and see " Bankrupt:'' " Attamde)" 
 
 when bankrupt guilty of, for not surrendering, 507. 
 omission must be wilfid, 509. 
 
 when for removing, concealing, or embezzling his efiects, 514. 
 
 bankrupt attainted of cannot be heard upon petition, 817. 
 FEME COVERT; and see " Wifer 
 
 when liable to bankruptcy, 21. 
 
 commission issued against ground for a supersedeas^ 805. 
 FIAT ; see " Commission." " Petition." 
 FICTITIOUS DEBT ; see " False Debts." 
 FICTITIOUS PAYEE, 
 
 as to proof OH bill payable to, 244. 
 FILING AFFIDAVITS, 
 
 general order as to, 590. 
 
 meaniui: of the term, 591. 841. 
 FILING DECLARATION OF INSOLVENCY, 
 
 an act of bankruptcy, 82.; and see " Act of JBun/aiijJtci/," 16. 
 
 petition lo take benefit of insolvent act, an act of bankruptcy, 84. > and 
 sec " Act of Bankruptcy" 18. 
 FISHEllMAN, 
 
 when a trader, 29. 
 
 when not, 37. 
 FIXTURES, 
 
 what not within the enactment as to reputed ownership, 405. 
 
 what are within it, 404. 
 FOREIGN CERTIFICATE ; and see " Certificate," 6.] 
 
 operation of, 605. el seq. 
 
 should be specially pleaded, 618. 
 FOREIGN COUNTRY ; see " yf5«gram-«<," 4. "Colonies." 
 FOREIGN DEBT ; sec " Certificate" 6. " Colonics." 
 FORFEITURE ON ALIENATION; sec " Assignment." "Lease." 
 
 commission does not work, 124. 
 FRACTION OF A DAY, 
 
 where it will be noticed, 748. 773. 
 FRAUD, 
 
 upon the great seal, how dealt with, 19. 
 
 l)uying for the purposes of, not a trading, 58. 
 FRAUDULENT ARREST, 
 
 an act of l)ankruptcy, 61, 62. ; and see " Act of Bankruptcy" 6.
 
 INDEX. 953 
 
 FRAUDULENT ATTACHMENT, 
 
 the like, 62. ; and see " Act of Bankruptcy" 10. 
 
 COMMISSION ; and see " Commission," 6. 
 
 when a ground for a supersedeas, 808. 
 COMPOSITION, 
 
 an act of bankruptcy, 83.; and see " Act of Bankruptcy^ 17. 
 CONVEYANCE, 
 
 the like, 63.; and see " Act of Bankruptcy" 11. 
 
 GIFT, DELIVERY, OR TRANSFER, 
 
 the like, 75.; and see " Act of Baiikruptcy" 1,5. " Assignment," 61. 
 IMPRISONMENT, 
 
 the like, 61. ; and see " Act of Bankruptcy," 7. 
 OUTLAWRY, 
 
 the like, 61.; and see " Act of Bankruptcy " 8. 
 SEQUESTRATION, 
 
 the like, 62.; and see " Act of Bankruptcy" 10. 
 SURRENDER, 
 
 the like, 75. ; and see " Act of Bankruptcy" 12. 
 FREIGHT, 
 
 lien for, 486. ; and see " Ship-owner" 
 FRIENDLY SOCIETY ACT, 
 
 operation of how confined, 500. 
 FULLER, 
 
 inay be a bankrupt, 26. 
 
 has only a special lien, 483. 
 
 except by custom of the trade at Exeter, ib.' 
 
 has no right of set-off" beyond his lien, 702. 
 FURNITURE BROKER, 
 
 may be a bankrupt, 27. 
 FUTURE DEBTS, 
 
 in what manner proveable, 212. 
 
 immaterial whether a written security or not, ib. 
 FUTURE EARNINGS, 551. See " Bankrupt," 5. 
 FUTURE ESTATE, 610. See " Certificate;' 6. 
 
 G 
 
 GAMING ; and see " Certificate," 5. 
 
 what loss by renders certificate void, 593. 
 GAOLER, 
 
 penalty on for escape, 534. 
 GARNISHEE, 
 
 when not liable to refund to assignees, 742. 
 GAZETTE, 121. 141.; and see " Advertisement." " Notice." 
 
 not sufficient evidence of notice, unless it can be inferred that the party 
 has seen it, 423. 
 GENERAL ISSUE, 
 
 when it may be pleaded in action against commissioners, 166. 
 GENTLEMAN PENSIONER, 
 
 office of, assignable, 359. 
 GIFT FRAUDULENT, 
 
 an act of bankruptcy, 75. 439.; and see " Act of Bankruptcy," 13. 
 GOOD WILL 
 
 of bankrupt's business not assignable so as to bind him, 388. 
 GRAZIER, 
 
 exempted from bankruptcy, 54.
 
 gSi INDEX. 
 
 GREAT SEAL. See " Chancellor." 
 GUARANTEE, 
 
 whether provcable where credit for goods has not expired, l;14. 
 GUARDIAN, 
 
 proof by, 195. 
 
 H 
 HABEAS CORPUS, 
 
 the proper mode of proceeding when bankrupt desirous to be discharged 
 from commitment of commissioners, 10. 
 
 Lord Chancellor may issue writ in vacation, ib. 
 
 as to remedy for bankupt's discharge by, 350. ; and see " Bunkrwpl" 4. 
 HACKNEYMAN, 
 
 may be bankrupt, 27. 
 HALF-PAY 
 
 of officer not assignable, 359. 
 HEARING 
 
 of petition to stay certificate, 592. 
 
 HEIR, 
 
 when bankrupt, lands subject to a specialty creditor, 181. 438. 
 
 of assignee, when an infant, how ordered to convey, 12. 353. 
 HERIOT 
 
 passes to assignees, 385. 
 HIGHWAY-RATES, 
 
 assessment for a good petitioning creditor's debt, 95. 
 HIRING, 
 
 buying and letting to hire, a trading, 26. 
 HORSE-DEALER 
 
 may be bankrupt, 28. 
 HOTEL-KEEPER 
 
 HUSBAND AND WIFE ; and see " Wife," 
 
 where a fe7ne sole marries after order for costs against her, as to the 
 liability of the husband, 855. 
 
 I 
 
 ILLEGAL CONTRACT, 
 
 claim to prove for money paid upon, how it operates, 308. 
 ILLEGAL DEBTS, 
 
 cannot be proved, 302. 
 
 what debts not illegal, ib. 
 
 debts tainted with usury cannot be proved, ib. 
 
 what contracts are considered usurious, 303, 31)4. ; and see " Usury." 
 debt arising from sale of goods for the purpose of illegal exportation 
 
 not proveable, ib. 
 so money advanced for the furtherance of any illegal contract, 305. 
 if part of consideration good, and part bad, a security may be proved for 
 
 amount of what is good, ib. 
 whether an act of parliament infringed, a question of law, ib. 
 where a broker acts in the same transaction both as broker and principal, 
 
 the debt accruing to him is void, 306. 
 contract to convey goods to an enemy's country illegal, 306. 
 ILLEGAL TRADE, 304. 
 IMPERTINENCE, 
 
 affidavit taken off the file for, 842.
 
 INDEX. 955 
 
 IMPOUNDING A COMMISSION, i.3o. 
 INDENTURE OF APPRENTICESHIP, 
 
 disdiarged by bankruptcy of the master, 255. 
 INDORSEMENT, 
 
 ot" bills ofexcliaiigc. Sec " Jii//.s of Exchange.^' 
 
 when Lord Chancellor cannot order bankrupt to indorse bills, 16. 
 
 of bill of lading. See " BUI of Lading" 
 INFANT, 
 
 cannot be made a bankrupt, 20. 805. 
 
 cannot be petitioning creditor, 111. 807. 
 
 creditor mode of proof by, 195. 
 
 heir of assignee, how ordered to convey, 12. .353. 
 
 property of, not aftcctcil by reputed ownership, 417. 
 
 not bound by omission to give notice to dispute the commission, 780. 
 INJUNCTION; and see " Banlcrupl," VII. 
 
 will not be "ranted arainst a bankrupt upon an application by bill, i j 
 INNKEEPER 
 
 liable to bankruptcy, 25. 
 INSANE CREDITOR, 
 
 mode of proof by, 195. 
 INSOLVENCY, 
 
 filing declaration of j an act of bankruptcy, 82. ; and see " Ad of Bank- 
 ruptc7/" 16. 
 INSOLVENT ACT, 
 
 filing petition to take the benefit of, an act of bankruptcy, 84. ; and see 
 " Act of Bankruptcy" 18. 
 
 debt from person discharged under, will support a conunission, 92. 
 
 uncertificated bankrupt cannot be discharged under, till when, 612, 
 INSOLVENT COURT, 
 
 bill for business done in, must be delivered a month before action, 899. 
 INSPECTOR, 
 
 when appointed, 51G. 
 INSURANCE ; see " Policy." 
 
 produce of insurance as to separate interest in joint property, 642. 
 INSURANCE BROKER, 
 
 has a general lien on all policies in his hands, 482. 
 
 except when knowing his principal to be merely an agent, ib. 
 
 m that case only a lien for the charges of the particular policy, ib. 
 
 as to right of set-oft' against the underwriter, 714. 
 
 no right where he does not act under a del credere commission, 715, 
 nor if he does so act, where he discloses the name of his principal, iA. 
 right of set-off in respect of his lien, ib. 
 INTEREST, 
 
 debt composed partly of, not sufficient to support a commission, 90. 
 
 when proveable on bills and notes, 26.5. 269. 
 
 only proveable when arising by contract, 269. 
 
 how contract to pay it evidenced, ib. 
 
 not allowed beyoncl the penalty of the security, ib. 
 
 a mere depositary not chargeable with, 270. 
 
 compound not allowed, ib. 
 
 except on a contract to pay it, ib. 
 
 only proveable up to date of commission, ib. 
 
 though surety compelled to pay interest subsequent, 271. 295. 
 
 where creditor agrees to allow discount on prompt i)ayment, 271. 
 
 subsequent interest allowed when a surplus, subject to certain priorities, ib.
 
 956 INDEX. 
 
 I NTEREST — continued. 
 
 as to the rights of the several classes of creditors, 212. 
 
 not to diminish the bankrupt's allowance, ib. 
 
 separate creditors not entitled till joint creditors paid 20*. in the 
 
 pound, 272. 
 creditor's claim to preferred to claims of joint or separate estates on 
 
 each other, 275. 
 personal estate to be applied towards payment of, before real 
 
 estate, ib. 
 allowable by commissioners withont an order, ib. 
 when creditor not barred of claim to, ib. 
 when creditor entitled to interest on his dividend, ib. 
 INTERLOCUTORY COSTS, 
 
 solicitor has no lien on, 876. 
 INTERPLEADER, 
 
 when bill of will lie against the bankrupt, 555. 
 INVENTORY, 
 
 when should be taken of bankrupt's effects, 170. 
 IRELAND, 
 
 prior separate commission there no ground for superseding joint com- 
 mission here, 130. 
 when part of bankrupt's property in, 170. 
 property in passes to assignees, 399. 
 ISSUE, 
 
 when directed, 584. 602. 622. 821. 826. 
 
 J 
 
 JEW BROKER, 
 
 place of not assignable, 360. 
 JOB-MASTER 
 
 liable to bankruptcy, 27. 
 JOINT CERTIFICATE, 
 
 when advertised as separate, 577. 
 JOINT COMMISSION, 128. 812.; and see " Commission," 4. 
 
 effect of, 630. ct seq. ; and see " Partners" 1. 
 JOINT AND SEPARATE DEBTS, 643. 708.; and see "Partners," S. 
 
 " Set-off" 3. 6. 
 JOINT CREDITORS; and see " Partners," 4. 
 
 proof by, 646. 
 JOINT STOCK COMPANY. See « PiMic Company." 
 JOINT TENANCY, 
 
 how bankruptcy operates upon interest of in lands, 551. 
 JUDGE'S ORDER, 
 
 does not prevent a petition for a suj)ersedeas, 818. 
 JUDGMENT CREDITORS, 
 
 not preferred to others as to proof, 196. 
 except when, ib. 
 JUDGMENTS, 
 
 not proveable if not signed before commission, 197. 
 although verdict before bankruptcy, ib. 
 
 proveable if signed before commission, ib. 
 
 where, even after commission, by relation, ib. 
 
 do not operate on bankrupt's lands unless execution taken out, 551. 
 JURISDICTION 
 
 of Lord Chancellor, 5. ; and see " Chancellor^*
 
 INDEX. 957 
 
 JURISDICTION — continued. 
 
 of Vice-Chancellor. See " Vice-Chancellor." 
 
 of Commissioners, 143.; and see " Commissioners" 
 
 K 
 KEEPING HOUSE, 5.5. ; and see « Act of Bankruptcy:' 
 KING; and see " Crowns " Extent" 
 not bound by bankrupt law, 490. 
 
 L 
 
 LABOURER, 
 
 exempt from bankruptcy, 34. 
 LAND, 
 
 buying and selling not a trading, 31. 
 LANDLORD. See " Rent." 
 LAND TAX, 494. 
 LEASE, 
 
 whether a covenant to grant or renew passes to assignees, 367. 
 
 not when the lease is for the j)crsonal accommodation of bankrupt, 
 368. 
 passes to assignees, though containing a proviso not to assign, 390. 
 this condition not forfeited by bankruptcy, 124. 
 alith; if proviso be to re-enter if lessee '\s found a bankrupt, 390. 
 or where the term depends upon his actual occupatio7i, 391. 
 does not vest in assignees, unless they assent to take the term, 393. 
 
 an express act of the assignees necessary to show their assent, 599. 
 what acts amount to an acceptance, 393. et seq. 
 what acts do not amount to an acceptance, 395. 
 assignees may get rid of their liability by assigning, 395. 
 compellable to elect whether they will take the lease or not, 396". 
 but allowed a reasonable time, 397. 
 when assignees neglect to determine, qucere whether bankrupt 
 
 lessee can apply for an order on them to elect, ib. 
 extent of the Lord Chancellor's jurisdiction in this respect, 
 
 395,396. 
 where order made on assignees to deliver up lease, though in 
 hands of third person, ih. 
 assignees bound by the covenant of lessee as to leaving hay, straw, &c., 
 
 397. 
 when entitled to ofF-going crops, 398. 
 parol agreement for a lease not within the statute, ib. 
 certificate not a protection against bankrupt's liability, unless assignees 
 accept the term, ib. 
 
 or the bankrupt deliver the lease up to the lessor, ib. 
 
 this exception only extends to cases between lessor and lessee, 
 
 599. 
 and not to cases between lessee and assignee of the lease, z'i. 
 bankrupt's liability as lessee not renewed, though he comes in afterwards 
 as assignee of the term, 600. 
 LEGACY, 
 
 given to bankrupt before certificate passes to the assignees, 385. 
 
 except where bankrupt owes testator a larger sum than the amount 
 of the legacy, ib. 
 LEGATEE, 
 
 when permitted to prove, 223.
 
 958 INDEX. 
 
 LEGATEE — continued. 
 
 may prove for a vested legacy if he has attained twenty-one, 225. 
 if not of age, may prove by guardian, ?<!». 
 LETTERS, 
 
 of bankrupt, when evidence, 798. ; and sec "Declarations." 
 LETTING FOR HIRE, 
 
 a trading, 26. 
 LIEN, 
 
 of a vendor. See " Vendor." 
 
 on goods, when it does not give the right of stoppage in Iransilu, 460. 
 
 not divested by commissioner's assignment, 47G. 
 
 definition of the term, ib. 
 
 nature of the right, ib. 
 
 distinction between lien and set-off, 70.5. 
 
 there nuist be an actual, and not a con.ttnictive possession, 477. 
 
 no greater lien conferred than that of party depositing, ib. 
 
 extinguished after abandonment of possession, ib. 
 
 except when forcibly turned out of possession, ib. 
 
 or where possession relinquished on the faith of an instrument 
 which turns out to be invalid, ib. 
 
 or of a sale which is afterwards set aside, 478. 
 when a lien may revive after possession abandoned and regained, ib. 
 when the article on which the lien attaches is of a perishalile nature, ib. 
 when waived by a special agreement, ib. 
 
 or by a claim of retention on a different ground, 479. 
 of a factor, ib. ; and see " Factor." 
 
 a consignee for advances made to the shipper, 480. 
 a banker, 482. 
 an insurance broker, ib. 
 a packer, 485. 
 a wharfinger, ib. 
 a fuller, ib. 
 a dyer, ib. 
 a printer, 484. 
 a calico printer, ib. 
 a miller, ib. 
 a carrier, ib. 
 
 on a ship for repairs, &c., 484.; and see " Ship." 
 of a ship-owner for freight, 486.; and see " Ship-owner." 
 tissignees bound by an equitable lien on goods, 488. 
 but when goods no longer in existence, such a lien will not attach upon 
 
 other goods, ib. 
 of vendor of goods exists only before delivery, 489. 
 of an attorney and solicitor, 871. See " Solicitor," 2. 
 of a landlord. See « Bent." 
 waived upon proof of debt, 489. 
 
 of the Crown for duties and taxes, 494, 495.; and see " Excise." 
 where a lien gives a right of set-off, 715. 
 L ME-BURNER, 
 
 when considered a trader, 3U 
 when not, .36. 
 LIMITATION OF ACTIONS, I66. 172.; and see " Commissioners." 
 
 " Messenger." 
 LIMITATIONS, STATUTE OF, 
 
 debt barred by, will not support a commission, 98. 807. 
 when assignees barred by, 742.
 
 INDEX. 959 
 
 LIVERY-STABLE KEEPER, 
 
 may be bankrupt, 27. 
 LIVING. See " Advowson." " Presentation." 
 LOST BILL, 
 
 proof on, 24G. 
 LOTTERY OFFICE, 
 
 keeping oi' before bankruptcy, no "round for refusing certificate, 585. 
 LOTTERY TICKET, 
 
 passes to assignees, 383. 
 LUNATIC, 
 
 whether liable to bankruptcy, 22. 
 LYING IN PRISON; and see " Act of Bnnh-tiptri/,'" 14. 
 
 an act of bankruptcy, 76. 
 
 proof of, 140. 
 
 M 
 
 MAINTENANCE, 
 
 bankrupt's right to, 543. 
 MALICIOUSLY SUING OUT COMMISSION, 
 
 action for, 13G.; and see " Commission" 6. 
 MANDAMUS, 
 
 lies to commissioners to take a further examination of bankrupt, 530. 
 does not lie to compel them to sign bankrupt's certificate 574 
 MARRIAGE SETTLEMENT; and see " Wife." 
 
 former inconveniencies from disability of proof under, 215. 
 trustees may now prove under the clause relating to contin<»ent debts 
 216. * ' 
 
 where covenant broken before bankruptcy, debt always proveable ib. 
 the like where any remedy at law against the bankrupt, 21 7. 
 where settlement made to avoid the bankrupt law, debt not proveable ib 
 except where the wife brings a portion to the husband, ib. 
 what part of the property may then be settled, ib. 
 proof limited to the amount of wife's fortune, 218. 
 
 or to such part only as is included in the settlement 219. 
 where bankrupt makes a false representation of his property on the 
 faith of which the marriage is had, 220. 
 what sum in such case proveable, ib. 
 when bond or covenant for transfer of stock upon request, amount of 
 
 proof regulated by the price of stock, 221. 
 when bankrupt entitled to a life interest in the property, what order 
 will be made as to the dividends, ib. 
 MARRIED WOMAN. See « Feme Covert." 
 MAYOR'S COURT, 
 
 effect of attachment in, 683. 
 MEETINGS OF COMMISSIONERS. See "Commission." "Commissioners''- 
 MEETING OF CREDITORS, 
 
 as to commencing suits in equity, &c., 324. 
 as to the composition contract, 814. 
 MEMBER OF PARLIAMENT, 
 liable to bankruptcy, 20. 
 
 acts of bankruptcy by, 85. ; and see " Act of Bankruptcy" 19. 
 MESSENGER, 
 
 power of Lord Chancellor to order payment of his bill, 12. 
 
 nature of the office, 169. 
 
 bis authority as to seizure of the bankrupt's person and property, ib..
 
 960 INDEX. 
 
 MESSENGER — continued, 
 
 where part of the property in Ireland, 170. 
 where property concealed, ib. 
 where property in Scotland, ib. 
 should make an inventory of bankrupt's effects, id. 
 should not quit possession after seizure, 171. 
 protected in discharge of his duty, ib. 
 indemnity as to actions, ib. 
 as to demand and refusal of warrant, ib. 
 petitioning creditor must be joined in action against him, ib. 
 as to limitation of action against him, and double costs, 172. 
 obstruction of amounts to a contempt, ib. 
 
 or indemnifying a person against the consequence of such ob- 
 struction, ib. 
 when provisional assignment made to messenger, 173. 
 who answerable to him for his costs, ib. 
 how recoverable, 174. 
 MILLER, 
 
 has only a special lien, 484. 
 and not a right of set-off beyond that lien, 702 
 MINES, 
 
 worker of, when deemed a trader, 30. 
 when not, 35, 36. 
 MISDESCRIPTION, 
 
 when a cause for superseding commission, 818. 
 MISNOMER, 
 
 does not render the commission or certificate a nullity, 617. 
 when a cause for superseding it, 818. 820. 
 MISTAKE, 
 
 of officer in issuing commission, when it will not prejudice, 113. 
 MONEY, 
 
 had and received will not lie, where no money actually received, 738. 
 as to money having no ear-mark, 427. 
 as to count for money lent by plaintiff <?« assignee, 739. 
 lien on, 874. 
 MORTGAGE, 
 
 may be paid off by assignees before forfeiture, 198. 
 after forfeiture must be sold, and proof made for the residue, ib. 
 mode of proceeding when mortgage sold, ib. 
 may be sold under the general order, ib. 
 as to taking the mortgage account, ib. 
 sale of, exempt from auction duty, 201. 
 
 though mortgage fails, proof may be made for money advanced, 210. 
 assignees may tender money due on mortgage from bankrupt, 556. 
 "entitled to equity of redemption, ib. 
 but must pay interest up to redemption, ib. 
 where two mortgages, cannot redeem one without the other, ib. 
 by bankrupt tenant in tail without suffering a recovery, how assignees 
 
 entitled after his death, 357. 
 of copyholds without surrender, assignees cannot take advantage of de- 
 fect, ib. 
 where mortgagor bankrupt after bill of foreclosure filed, assignees can- 
 not on thci?- application alone have an immediate decree to redeem, 
 358. 729. 
 of ship, not within the provision as to reputed ownership, 421. 
 
 I
 
 INDEX. 961 
 
 MORTGAGE — continued. 
 
 Equitable Mortgage, how created, 201. ,"557. 
 validity of how established, 202. 
 requires a special order for a sale, 201. 
 difference in the allowance of costs, where created by umtten agreement, 
 
 and where by parol, 202. 
 of a lease containing a covenant not to assign, 20.3. 
 assignees must join in conveyance of, when sold, 203. 
 as to deposit of deeds for preparing a legal mortgage, ib. 
 
 semble, amounts to an equitable mortgage, 204. 
 no lien on deeds where object of deposit not explained, ib. 
 
 nor when deposited for a particular purpose, ib. 
 if only part of title deeds deposited, in what case mortgage effectual upon 
 
 the whole estate, ib. 
 deposit of deeds by wrongful possessor confers no lien, 205. 
 deposit of court rolls creates an equitable mortgage, ib. 
 so of deeds to secure an annuity, 206. 
 when deposit with third person good, 205. 
 with bankrupt's wife bad, ib. 
 when third person advances money himself, lien does not extend 
 
 beyond him, ib. 
 when purpose of deposit may be enlarged by subsequent agreement, 
 206. 
 as to transfer of deeds by depositary to third person, ib. 
 difibrence as to tacking in the case of an equitable and a legal mortgage, 207. 
 as to lien of a vendor on an estate for the purchase mone)', 209.; and see 
 " Vendor:' 
 MORTGAGEE, 
 
 Chancellor no jurisdiction over a second mortgagee not claiming undec 
 
 commission, 18. 
 not bound to join in sale, 199. 
 if he proves, he waives his right to the mortgage, ib. 
 mode to be pursued when second mortgagee refuses to join in sale, ib. 
 when a mortgagee entitled to an injunction, 200. 
 how he should act when he wishes to bid at the sale, ib. 
 liable for expenses of sale, when the purchaser, 201. 
 as to right of tacking, 207. 
 
 when first mortgage by deed he cannot tack a further charge by 
 
 'parol, 207. 
 but may tack a bond, ib. 
 
 or a subsequent judgment docketed, ib. 
 when equitable mortgagee may tack a further charge, ib. 
 whether a legal mortgagee can tack a second mortgage made after 
 
 bankruptcy without notice, ib. 
 goods pledged cannot be retained for subsequent advances, 210. 
 not entitled to crops, where bankrupt mortgagor tenant in possession, 358. 
 not entitled to recover rent paid by tenant to assignees of mortgagor, ib. 
 when he may oppose the allowance of the certificate, 578. 
 MOTION, 
 
 when an application should be by, 836. 
 MUTUAL DEBTS AND CREDIT, 698. 701.; and see "Set-off." 
 
 N 
 NAILOR 
 
 may be a bankrupt, 27.
 
 962 INDEX. 
 
 NAVY AGENT, 
 
 mode of proof by, 195. 
 NEW CHOICE, 
 
 of assii^nees when directed; and see " Assignees" 2. 
 NEW PROMISE, 624. ; and see " Certificate" 9. 
 NEWSPAPER, 
 
 publisher of deemed a trader, 29. 
 copyright of passes to assignees, 389. 
 qucere, whether a right to a news-walk, ib. 
 a share in, within the enactment as to reputed ownership, 405. 
 when assigned without an affidavit of the change of interest, 416. 
 NEW TRIAL, 
 
 refused when commission found to be concerted, 828. 
 mode of applying for, ib. 
 NONJOINDER, 
 
 of a joint assignee a ground of nonsuit, 732. 
 NONSUIT, 
 
 effect of in action against a commissioner, 165. 
 whether costs of can be proved, 274. n. 2. 
 NOTE. See " Bills of Exchange." " Banker." 
 NOTICE, 
 
 of bankruptcy in the Gazette, 141. 
 
 to the bankrupt, ib. 
 of action to commissioners, 165. 
 of dissolution of partnership, 423. 
 of allowance of certificate, 575. 
 
 of act of bankruptcy, effect of, 685. et seq.; and see " Relation" 2. 
 what is notice of an act of bankruptcy, 695. 
 how such notice formerly considered, 696. 
 when the issuing of a commission to be deemed notice, ib. 
 corporation or public company affected by notice to their agent, ib. 
 confined now to actual notice of the act of bankruptcy, 697. 
 notice of a fraudulent deed by a person not a party to it, not notice 
 of the act of bankruptcy, ib. 
 to creditors of a petition for a supersedeas, 824. 
 
 O 
 OFF-GOING CROPS, 
 
 when assignees entitled to, 398. 
 OFFICE-COPIES, 
 
 when admissible in evidence, 786. 
 OFFICER. See " Half-jmy." " Trading." 
 OFFICES, 
 
 assignable unless they concern the administration of justice, 358. 
 
 mode of proceeding by assignees when bankrupt entitled to an office, 560. 
 
 what offices assignable, ib. 
 
 what not, ib. 
 OPENING BIDDINGS, 332. 
 OPENING COMMISSION, 138. See " Commission." 
 
 preliminary proceedings to the adjudication, ib. 
 
 petitioning creditor and witnesses must attend in person, ib. 
 
 witness must not be a creditor, 139. 
 
 bankrupt's wife inadmissible, ib. 
 
 objection to competency of witness must be taken before adjudication, ii. 
 . where personal attendance of witness dispensed with, ib.
 
 INDEX. 963 
 
 OPENING COMMISSION — con^mwerf. 
 
 usual proof where act of bankruptcy is by lying in prison, 140. 
 
 duty of the commissioners as to the adjudication, ih. 
 
 cannot adjudicate if bankrupt dead, ib. 
 
 cannot be compelled to adjudicate, 141. 
 
 but where they do not, a fresh commission ordered, ib. 
 
 notice of adjudication must appear in the Gazette, ib. 
 and must be given to the bankrupt, ib. 
 
 when advertisement in Gazette will be suspended, ib. 
 
 bankrupt may suri'ender at this meeting, 142. 
 
 as to appointment of provisional assignee, ib. 
 
 issuing of the warrant of seizure, ib. 
 ORDER, 
 
 obtaining, operates as an election, 185. 
 
 for payment of money, proveable, 196. 
 
 on petition, as to service of, 845. 
 
 when default in payment of money under, ib. 
 
 for re-hearing, ib. 
 OUTLAWRY, 
 
 when fraudulent, an act of bankruptcy, 61. ; and see '^ Act of Bank- 
 ruptcy" 8. 
 
 as to discharge of bankrupt from process of after certificate, 623. 
 
 effect of judgment of against some of several partners, 653. 
 OVERSEER, 
 
 when bankrupt, how money in his hands may be proved, 301. 
 
 P 
 
 PACKER ; and see « Repttted Oivner." 
 
 a trader, 25. 
 
 when qicasi a factor, and entitled to a lien for his general balance, 483. 
 PARLIAMENT MEMBER OF. See " Member." 
 PART DELIVERY, 
 
 effect of, as to stoppage in transitu, 455. 
 PARTICULAR, 
 
 of act of bankruptcy, when required to be delivered, 826. 
 PARTNERS; and see " Actions;' 2. 
 
 acknowledgment of partnership with a trader sufficient proof of trad- 
 
 to groimd a joint commission against, each partner must commit an act 
 
 of bankruptcy, 41. 774. 
 where an engagement of one partner to provide for bills prevents the 
 
 partnership from suing out a commission on them, 88. 
 joint debt will support a separate commission against any one, ib. 
 as to right of one partner to sue out commission against his copartner, ii. 
 where partners are petitioning creditors, sufficient if one makes the 
 
 affidavit and executes the bond, 111. 
 as to a joint commission against, 128.; and see " Commission" 4. 
 remaining instalments due of a partnership premium pass to assignees, 388. 
 where a secret partner, all the property passes to assignees of ostensible 
 
 partner, 418. 
 notice in Gazette of dissolution not sufficient, unless it can be reasonably 
 
 inferred that a party has seen it, 423. 
 operation of extent against one partner, 491. 
 
 3 Q 2
 
 964- INDEX. 
 
 PMiTNERS — continued. 
 
 allowance to bankrupt partners under a joint commission, 546. 
 
 one partner entitled now to his allowance, although the other has 
 not obtained his certificate, 547. 
 one partner may sign certificate for himself and copartners, 5G6. 
 
 so a petition in any matter in bankruptcy, 838. 
 partner of bankrupt not discharged by the certificate, 595. 
 when he may oppose the allowance of it, 578. 
 
 1. Of the effect of Bankrupted/ generalltf, and of a separate Commission 
 
 against one or more of the Partners, 629. 
 effect oi a joint commission, 630. 
 effect of a separate one as to the bankrupt partner, ib. 
 as to the solvent partner, 631. 
 
 difference between decisions at law and in equity, ib. et seq. 
 where joint property attached abroad, and a separate commission 
 issued in England, 634. 
 where a partner interested in the profits but not in the property, ib. 
 when a transfer by such a partner will be void, ib. 
 but under a commission against all the partners, the property then 
 considered as joint, 642. 
 where bankrupt partner has embezzled part of joint property, 655. 
 
 consequences as to himself, 636. 
 as to bankrupt partner's uncertain interest in a joint adventure, 635. 
 where solvent partners continue the business with bankrupt's share of 
 
 capital, ib. 
 rights of a solvent partner to the surplus, 656. 
 effect of payment of a dividend as to the solvent partner, ib. 
 assignees may sue in their own names and in that of the solvent part- 
 ner, 7.30. 
 when solvent partners cannot sue without joining assignees, 744. 
 when goods delivered by solvent partner bona fide, assignees cannot main- 
 tain trover against consignee, ib. 
 
 2. What is joint and what sejjarate Property under a joint or separate Com- 
 
 mission, 637. 
 interest of the assignees under a separate commission, ib. 
 
 power as to the joint property, 638. 
 as to consolidating joint and separate estates, ib. 
 effects of an assignment by a retiring to a continuing partner, ib. 
 
 will have no effect unless accompanied with possession, 640. 
 
 where joint property left in the possession of continuing partner, ib. 
 
 as to the liability of new partners, ib. 
 
 where payments to a retiring partner fraudulent, ib. 
 where real estates purchased with partnership fund, and conveyed to one 
 
 partner, 641. 
 where ships so purchased and registered in name of one partner, ib. 
 
 whether register conclusive proof of interest, 642. 
 
 produce of insurance of separate interest of joint owner, ib. 
 where three partners sell goods elsewhere in the name of two, ib. 
 liability of joint estate to expenses of separate commission, ib. 
 
 3. What is a joint and ivhat a separate Debt, 643. 
 where one partner can bind his copartners, ib. 
 
 authority to accept bills maybe rescinded by notice of the other partner, i5. 
 when trust money used by one partner for the partnership, 644. 
 
 distinction whether with, or without, the privity of tlie other part- 
 ners, ib.
 
 INDEX. 965 
 
 PARTNERS — eontimicd. 
 
 What is a joint and what a separate Debt. 
 where a new partner answerable for an old debt, 644. 
 where bill drawn by one partner applied with the privity of the others to 
 
 partnership purposes, ib. 
 where joint creditor takes separate security of one partner, 645. 
 when a dormant partner liable, ib. 
 
 as to necessity of joining him in action, 646. 
 where a joint debt and a separate debt not recoverable in the same 
 action by assignees, 745. 
 
 but this irregularity cured by verdict, ib. 
 
 4. Of Proof bi/ joint Creditors against the joint and se^tarale Estates, 646. 
 how joint and separate estates to be applied, ib. 
 
 general order as to keeping distinct accounts, 647. 
 
 proof by joint creditor under separate commission, ib. 
 
 rule when there are no joint effects, ib. 
 
 when joint property realised after proof against the separate estate, 
 
 650. 
 where there is a solvent partner, ib. 
 
 where solvent partner abroad, or none at the time of proof, 651. 
 insolvency alone does not warrant proof against the other partner, ib. 
 proof by a creditor of a joint adventure where no joint property, ib. 
 as to order for distinct accounts, 652. 
 
 proof by joint creditor, where joint property taken under separate com- 
 mission, ib. 
 where joint creditor has the privilege of election as to proof, ib. 
 when entitled to prove under separate commission, 653. 
 where bankrupt partner secretly withdraws partnership monies for 
 his private use, ib. 
 
 but not where he does so openly, ib. 
 as to proof after judgment of outlawry against some of the partners, ib, 
 
 5. Of Proof by separate Creditors under a joint Commission, 654. 
 limited right oi proof to assent or dissent from certificate, ib. 
 accounts to be taken of the separate estates, ib. 
 
 overplus of joint estate to go to the separate creditors, ib. 
 
 proof may be made without a special order, 655. 
 
 as to proof of security given by one partner for money applied to partner- 
 ship purposes, ib. 
 
 what is an adoption of a separate debt by the partnership, ib. 
 
 as to proof of cestui que trttst where one partner ivithout the privily of 
 the other uses the trust money, 656. 
 
 where ivith the privity of the other partner, ib. 
 
 where joint dealings illegal, no proof against the joint estate, 657. 
 
 6. Of Proof by Creditors holding joint and several Securities, and of the 
 
 Creditor's Election to prove against the joint or sejiarate Estates, 657.; 
 and see " Election," 2. 
 
 7. Of Proof between Partners, and dijferent Firms composing one general 
 
 Partnership, 664. 
 when a retiring partner can prove against the continuing one, 297. 
 solvent partner cannot prove in competition with the general creditors, 
 
 664. 671. 
 same rule applies to different estates when all partners bankrupt, 664. 
 Exceptions to this rule, 665. 
 
 1. Money fraudulently abstracted from one estate for the other, i^. 
 
 3 Q 3
 
 966 INDEX. 
 
 PARTNERS — continued. 
 
 Of Proof bctiveen Partners, and different Firms, cfc. 
 what is a case of fraud, 665. 
 
 rights of separate creditors of defrauded partners, 666. 
 solvency of the partner will not prevent the same right, ih. 
 where one partner by his own conduct gives the other a full control 
 over the partnership funds, 667. 
 
 what is not an acquiescence in such control, 668. 
 as to contribution between estates, 669. 
 
 where a solvent partner (who has paid all the joint debts) may piove, 
 for a share of the deficiency not paid by one of two bankrupt 
 partners, against the estate of the other, ib. 
 2. Where some of the partners carry on a different trade under a dis- 
 tinct firm, 670. 
 
 trades must be distinct, and not merely branches of the joint con- 
 cern, 671. 
 consideration of the debt must be for articles of trade, 672. 
 special order for keeping distinct accounts, ib. 
 How affected by the right of set-off, 708. 
 
 debt due from a surviving partner may be set off as a separate 
 
 debt, 709. 
 so a debt due from the only ostensible partner may be set off in an 
 action, in which that partner and a seci-et partner are co-plaintiffs, 
 710. 
 so where bankers indorse a note to another firm in which some of 
 them were partners, a debt due from the banking firm may be 
 set off in an action by the indorsees of the note, ib. 
 where only some -partners of a firm bankrupt, not within the enact- 
 ments as to mutual credit, ib. 
 PART-OWNERS, 
 
 of ship have no lien upon the share of another part-owner, 487. 
 PART-PAYMENT, 
 
 effect of as to stoppage in transitu, 459. 
 PATENT, 
 
 bankrupt's interest in passes to assignees, 589. 
 within the enactment as to reputed ownership, 405. 
 
 when assigned and patentee continues to use the invention, 417. 
 PAUPERIS IN FORMA, 
 
 when bankrupt may petition, 829. 841. 
 PAWNBROKER 
 
 liable to bankruptcy, 22. .51. 
 PAYMENT OF MONEY INTO COURT, 
 in action against commissioner, 165. 
 
 in actions by assignees before time allowed bankrupt to dispute commis- 
 sion, 744. 
 PAYMENT, 
 
 when invalidated by a commission, 125. 
 plea of admits the title of the assignees, 784. 
 PEER 
 
 may be a bankrupt, 20. 
 PENALTY, 
 
 due to the crown a good petitioning creditor's debt, 95, 
 PERJURY, 
 
 punishment for, 182.
 
 INDEX. 967 
 
 PETITIONING CREDITOR. 
 
 1. Of the Amount and Nature of his Debt ; and see " Supersedeas" 807. 
 debt payable infuturo sufficient, 87. 
 must be a legal and not an equitable debt, ib. 
 
 due to petitioning creditor in his own right, ib. 
 but one of several assignees may sue out commission, ib. 
 partners cannot sue out commission on bills, where one partner 
 engages to provide for them when due, ib. 
 must not be a debt from one partner to another, ib. 
 
 except when the partnership has been determined, ib. 
 but when debt does not arise out of a partnership transaction, one 
 partner may then be petitioning creditor, ib. 
 when a creditor receiving part of his debt, reducing it below 100/., may 
 nevertheless be petitioning creditor, 89. 
 
 when after execution of a composition deed, ib. 
 
 or after taking a bond or a bill for the whole or a part of his 
 
 debt, ib. 
 or a promissory note on a wrong stamp, 90. 
 ^creditor buying in notes at IO5. in the pound good for the whole 
 
 amount, ib. 
 debt composed partly of interest bad, unless when, ib. 
 banker's paid check though in hands of drawer, not of itself sufficient 
 
 evidence of debt, ib. 
 debt must not be contingent, ib. 
 
 nor on an unliquidated account, y 1 . 
 
 nor one due from a person discharged under insolvent act, 92. 
 but warrant of attorney to secure running acceptances sufficient, 91. 
 so a debt on an attorney's bill though not signed or delivered, ib. 
 
 or though an order pending for taxation of it, ib. 
 so a debt from a surety, ib. 
 or one due on an award, ib. 
 or a penalty due to the Crown, 93. 
 or an assessment for church or highway rates, ib. 
 whether an uncertificated bankrupt can be petitioning creditor, 91. 
 executor of a bankrupt cannot for debt due before bankruptcy, 92. 
 factor selling goods in his own name may be, ib. 
 creditor residing in enemy's country cannot, ib. 
 except when trading under a licence, ib. 
 or when residence involuntary, ib. 
 where secretary to public company cannot, 9.5. 
 where the gross amount of debts is below 200/. on a commission sued out 
 
 by three or more creditors, bad, ib. 
 though debt insufficient. Lord Chancellor may in what case order com- 
 mission to stand, ib. 
 2. Tivie of contracting and accruing of the Debt, 94. 
 must be subsisting whilst party is in trade, ib. 
 and before some act of bankruptcy, ib. 
 
 verdict in tort, where judgment not till after act of bankruptcy, bad, 96. 
 debt contracted after arrest bad, where act of bankruptcy by lying in 
 
 prison, ib. 
 but accepting security of a higher nature, or a judgment after act of 
 
 bankruptcy, will not invalidate original debt, ib. 
 note made before, though indorsed after act of bankruptcy, sufficient, ib. 
 bill not due, good for the amount, without deducting discount, 97. 
 
 5 0. 4
 
 968 INDEX. 
 
 PETITIONING CREDITOR — continued. 
 Time of contracting and accruing of the Debt. 
 
 or, though paid by acceptor after commission, a good debt against 
 
 the drawer, 97. 
 when due, what must be proved against the drawer, ib. 
 but exchange of acceptances before bills are mature, insufficient, ib. 
 so a debt due to acceptor of an accommodation bill paying it 
 after the act of bankruptcy of the drawer, ib. 
 a debt barred by statute of limitations insufficient, 98. 
 or one contracted by an infant, 100. 
 executor before probate a good petitioning creditor, 99. 
 
 and though probate has wrong stamp, may be stamped after ad- 
 judication, ib. 
 when debt due to wife dum sola, husband must petition jointly, ib. 
 except on a bill or note, where he may petition alone, ib. 
 3. General Duties and Liabilities of Petitioning Creditor, ib. 
 
 cannot sue out commission after taking the person in execution, ib. 
 
 or a second commission without special leave, 122. 
 concluded by suing out the commission, 190. 
 has not the election of the other creditors, 101. 
 
 except when, ib. 130. 
 liability for irregularity in suing out commission, 102. 
 how far liable for costs, ib. 
 when allowed costs on petition, 102. 1.50. 
 
 penalty for compounding with bankrupt after striking docket, ib. 
 liability for receiving money from him before docket, 103. 
 making a corrupt bargain with the solicitor, guilty of a contempt, ib. 
 bound to support the commission, ib. 
 
 to make due previous inquiries as to the trading, &c., 104. 
 to give all proper information to the assignees, ib. 
 to produce documents, &c., ib. 
 
 but not to give evidence against his own commission, ib. 
 estopped by his affidavit of debt, \0B. 
 when should be made a defendant, ib. 
 when liable for costs of action, ib. 
 should be joined in action against the messenger, 171. 
 must prove his debt at a public meeting, 567. 
 as to his competency as a witness ; sec " Witness" 7. 
 PETITION, PRACTICE ON, 
 
 to stay certificate, 587.; and see " Certificate" 4. 
 
 for a supersedeas, 824. ; and see " Supersedeas" 3. 
 
 as to service of petition to expunge a proof where creditor abroad, 311. 
 
 practice on petitions in general, 835. 
 
 when application should be by jjctition, and when by motion, 856. 
 when a petition will not lie, ib. 
 petition may be framed in the alternative, ib. 
 how it should be entitled, ib. 
 should not be multifarious, ib. 
 general order as to signature and attestation, 837. 
 when a party permitted to sign by his agent, 858. 
 assignees must all sign, ib. 
 
 but one partner may sign for himself and partners, ib. 
 must be attested by solicitor presenting petition, ib. 
 but attestation need not state that he is such, ib.
 
 INDEX. 969 
 
 PETITION, PRACTICE ON — contiimed. 
 
 when it must state him to be solicitor or agent of the party 
 signing, 838. 
 what attestation insufficient, 839. 
 by the solicitor's agent, ib. 
 gucBre, whether authentication sufficient, ib. 
 solicitor being in prison, no objection to the attestation, ib. 
 mode of applying for a petition to stand over, 840. 
 petitions must be personally served upon the other party, ib. 
 except when special order obtained, ib. 
 when this may be applied for, id. 
 when a supplemental petition necessary, 841, 
 petition in forma pauperis, ib. 
 rule as to restoring petition struck out of paper, ib. 
 affidavit of service, and of the truth of petition, ib. 
 
 office copies must be taken, ib. 
 as to filing an affidavit, ib. 
 when it should be sworn, ib. 
 
 what is a waiver of an objection as to the swearing, 842. 
 affidavits should not be filed subsequently to petition day, ib. 
 except in support of a motion, ib. 
 before whom should be sworn, ib. 
 should be pertinent to matter of jietition, ib. 
 when a defect in may be amended, ib. 
 when affidavits in reply may be filed, ib. 
 when affidavits receivable in evidence before the Master, 843. 
 as to inspection of proceedings, ib. 
 
 mode of proceeding when petitioner does not appear, 844. 
 service of order on petition, ib. 
 
 when default made in payment of money under an order, ib. 
 order on petition for re-hearing, ib. 
 signature of petition of appeal, ib. 
 
 as to practice on directing an issue, of an action, see " Supersedeas^* 3 
 PETITION TO PROVE 
 
 operates as an election, 185. 
 
 cannot be presented before commissioners have rejected prootj 837. 
 PLEADING ; and see " Actions:' 
 
 proof of a debt cannot be pleaded by bankrupt in bar, 189. 
 PLEADING CERTIFICATE. See « Certificate;' 7. 
 PLEDGE; and see " Factor." 
 
 of goods cannot be retained for further advances after the bank- 
 ruptcy, 210. 
 when creditor may have a value set upon the goods, and prove for the 
 
 difference, 211. 
 selling goods pledged does not destroy right of proof for balance, ib. 
 PLUMBER 
 
 may be bankrupt, 27. 
 POLICY OF INSURANCE, 
 
 insured may prove, though loss happens after the commission, 264. 
 agent may prove, when party insured is abroad, ib. 
 life insurances within the enactment of the statute, ib. 
 
 on bankrupt's life passes to assignees, 389. 
 on foreign property, when not proveable, ib. 
 within the enactment as to reputed ownership, 405.
 
 970 INDEX. 
 
 POLICY OF INSURANCE — conti7iucd. 
 
 when assigned with a ship, purchaser may be entitled to policy, though 
 not to ship, 421. 
 POSSIBILITY, 
 
 passes to assignees, 363. 
 
 but not a mere expectancy of inheritance, 564. 
 POWERS, 
 
 former uncertainty as to their vesting in assignees, 361. 
 
 but now all (with one exception) may be executed by assignees, 362. 
 POWER OF ATTORNEY, 
 
 to receive money i-evoked by bankruptcy of principal, ih. 
 
 semble, if given to a bankrupt, also revoked, ib. 
 
 but power given to do a mere formal act not revoked, ib. 
 
 as to sign an indorsement on certificate of registry of a ship, 419. 691 . 
 
 to sign the bankrupt's certificate, 554, 
 PRACTICE ON PETITIONS. See " Petitions." « Supersedeas;' 5. 
 PREFERENCE FRAUDULENT. See « Assignment;' 6. 
 
 ground for a supersedeas, 806. 822. 
 PRESENTATION TO A LIVING, 
 
 passes to assignees unless the church be void, 360. 
 PRINCIPAL AND AGENT. See " Agent." " Factor." "Banker." « Broker:' 
 PRINCIPAL AND SURETY. See " Surety." 
 PRINTER, 
 
 may be a bankrupt, 26. 
 
 nature of his lien, 484. 
 PRISON, 
 
 trader yielding himself to an act of bankruptcy, 6 1 . 
 
 lying in, 76.; and see " Act of Bankriqitcy;' 14. 
 
 escape from, an act of bankruptcy, 81. See " Act of Bankruptcy;' 15. 
 PRISON BOOKS, 
 
 when evidence, 772. 
 PRIVILEGE, 
 
 of a bankrupt from arrest, 555.; and see " Bankrupt;' V. 
 
 of an attorney, 870. 
 PROBATE OF WILL, 
 
 insufiicienlly stamped may be (when properly stamped) good by re- 
 trospection. 99. 
 PROCEDENDO, 
 
 Vice-Chancellor may hear a petition for, 14. 854. 
 
 operation and effect of, 834. 
 
 in what cases granted, 835. 
 PROCEEDINGS; and see "Depositions:' 
 
 who entitled to custody of, 325. 
 
 no lien on, 164. 
 
 when ordered to be deposited with the secretary of bankrupts, 137. 
 
 a Judge no authority to order copies, ib. 
 
 when lost, 574. 
 
 when and by whom may be inspected, 843. 
 
 when they must be produced, 825. 868. 
 PROFERT, 
 
 need not be made in an action by assignees, 740. 
 PROHIBITION, 
 
 will not lie to the Lord Chancellor in bankruptcy, 11. 
 PROMISSORY NOTES. See " BiUs of Exchange:'
 
 INDEX. 971 
 
 PROOF OF DEBTS, 
 
 1. Of Debts in general, and herein of the Rights and Duties generally of 
 
 Creditors, 176. 
 creditor may prove though act of bankruptcy prior to debt, ib. 
 or though debt contracted after bankrupt left off trade, 177. 
 but cannot prove debt barred by statute of limitations, ib. 
 may prove debt contracted by bankrupt's wife before iier mar- 
 riage, ib. 
 or any debt barred by certificate, ib. 
 
 but debt must first be liquidated, ib. 
 how proof operates, ib. 
 
 is a waiver of any lien, 489. 
 penalty on creditor receiving more from bankrupt than other creditors, 
 
 178. 
 creditors must come in upon equal terms, ib. 
 mode of proof as to creditors holding securities, ib. 
 should be exhibited, 179. 
 
 when security may be sold, and proof made for the difference, ib. 
 when proof may be made without giving up security, ib. 
 where creditor insures against a contingency', and receives the sum in- 
 sured, the sum recovered must be deducted from the proof, 210. 
 proof of balance of a debt should not be rejected, 180. ' 
 
 disability of creditor by not proving, 181. 
 creditor bound to answer the commissioners' inquiries, ib. 
 right of a specialty creditor against a bankrupt heir, ib. 
 when creditor not estopped by proof, ib. 
 when liable to contribute to expenses of assignees, ib. 
 creditor may appeal from commissioners to the Chancellor, 182. 
 ' punishment for perjury, ib. 
 statute to be construed favorably for creditors, ib. 
 
 2. Of the Creditor's Election to sue the Ban/erupt, or j^rovc his Debt, 185. • 
 
 and see " Election." 
 o. Time of Proof, 192. 
 as to a special meeting, ib. 
 
 creditor may prove at any time before a final dividend, ib. 
 except in the case of gross laches, ib. 
 4. Manner of Proof, 1 93. 
 creditor must attend in person, ib. 
 proof may be rejected by commissioners, ib. 
 commissioners may inquire into consideration, ib. 
 form of the creditor's deposition, 1 94. 
 when proof may be matle by affidavit, ib. 
 how a corporation may prove, ib. 
 
 whether the oath of a creditor can be dispensed with, ib. 
 how a trustee should prove, 195. 
 
 assignee of a bond, ib. 
 
 navy agent, ib. 
 
 infant creditor, H. 
 
 where creditor insane, ib. 
 
 where the bankrupt is an executor or trustee, ib. 
 securities must be produced, 196. 
 if creditor dissatisfied, may appeal to the Chancellor, U). 
 
 5. By Judgment Creditors, ib. 
 
 6. By Creditors having a Mortgage or Equitable Lien, 198. 
 
 7. Of Debts payable in future, 212.
 
 972 INDEX. 
 
 PROOF OF DEBTS — continued. 
 
 8. Of Contingent Debts, 212. 
 
 9. O/" Creditors by Marriage Articles, 215. 
 
 10. By Creditors of a Bankriqjt Executor or Trustee, and by the Executors 
 
 of a Creditor, 222. 
 
 11. Of Credito7's by Annuities, 227. 
 
 12. Apprentices, Clerks, Servants, and Children, 255. 
 
 13. On Awards, 235. 
 
 1 4. On Bonds, ib. 
 
 1 5. Bills of Exchange and Promissory Notes, and of Cross Paj)er Demands, 
 
 259. 
 
 16. Policies of Insurance, 264. 
 
 17. Rent, 265. 
 
 18. Interest, 269. 
 
 19. Costs, 274. 
 
 20. Damages, 280. 
 
 21. Sureties, 285. 
 
 22. Creditors by Composition, 297. 
 25. Friendly Society Act, 299. 
 
 24. Rates and Taxes, 301. 
 
 25. Illegal and void Debts, 502. 
 
 26. Of claiming a Debt, 507. 
 
 27. Of expunging and reducing a Proof, 146. 509. 
 
 N.B. For the particulars under these different heads, see the re- 
 spective Titles in the Index, 
 by joint creditors against the joint and separate estates, 646.; and see 
 
 " Partners" 4. 
 how it operates as to the jurisdiction of the Chancellor, 17. 
 PROSECUTING COMMISSION, 
 
 time limited for, 120. 
 PROTECTION. See " Arrest." " BankrujH." " Witness." 
 PROTEST OF BILLS^ 
 
 charges of, when proveable, 265. 
 PROVISIONAL ASSIGNMENT; and see " Assignees," 1. 
 
 when necessary, 142. 175. 312. 490. 
 PUBLIC COMPANY, 
 
 member of exempted from bankruptcy, 35. 
 
 debt due to does not enable their secretary to be a petitioning cre- 
 ditor, 95. 
 when shares in subject to the provision as to reputed ownership, 403. 405. 
 
 when assigned and remaining in name of bankrupt, 4 1 6. 
 as to their right of set-oft) 712.; and see " Set-off" 4. 
 PUBLIC OFFICER, 
 
 not liable to bankruptcy, 55. 
 PUBLICATION 
 
 of bankruptcy when restrained, 114. 
 PURCHASER, 
 
 protection of, against relation to the act of bankruptcy, 685. et seq.; 
 
 and see " Relation" 2. 
 when protected from effects of a supersedeas, 851. 
 
 Q 
 
 QUALIFICATION 
 
 of commissioners, 138.
 
 INDEX. 973 
 
 QUARANTINE, 
 
 how considered with respect to the completion of the voyage, 457. 
 QUARRY, 
 
 working and selling stone from, whether a trading, 51. 
 QUORUM COMMISSIONERS, ii5. 
 
 R 
 RATES. See " Taxesr 
 REAL ESTATE, 348.; and see " Assignment" " Bargain and Sale.** 
 
 in colonies, as to registration of conveyance of, 348. 
 RECALLING CERTIFICATE, 586. ; and see « Certificate," z. 
 RECEIPT, 
 
 by one assignee, whether a sufficient discharge, 524. 
 RECEIVER, 
 
 cannot be appointed in bankruptcy upon petition, 1 2. 224, 
 a decree for one not superseded by a commission, 124. 
 cannot sign a bankrupt's certificate, 566. 
 when he may oppose the allowance of it, 578. 
 RECEIVER GENERAL OF TAXES 
 
 exempted from bankruptcy, 34. 
 RECOMMITMENT, 
 
 when warrant defective, 1 SQ. 
 REDEMPTION, ^ee " Eaiiitu of Redemptionr "Mortgage 
 RE-EXCHANGE, 
 
 when proveable, 263. 
 REGISTRATION, 
 
 in colonies of conveyance of real estate, 348. 
 REGISTRY OF PROCEEDINGS, 785. 
 REGISTER ACT OF SHIPPING, 419. 
 RE-HEARING, 
 
 as to obtaining order for, 844. 
 RELATION TO ACT OF BANKRUPTCY, 
 
 to the arrest, in computing period of lying in prison, 79. 
 1. As to Payments made by or to the Bankrupt, 674. 
 alterations in the former law of relation, ib. 
 what payments by the bankrupt valid, 675. 
 
 relation only extends to accruing of petitioning creditor's debt, ib. 
 payment not confined to former restriction, ib. 
 but must be a bona fide payment, 676. 
 and made by the bankrupt or his agent, ib. 
 
 indorsement and delivery of bills of exchange when a good payment, ib, 
 when acceptance of a bill, ib. 
 or bartering of goods, ib. 
 
 payments by bankrupt's bankers after act of bankruptcy not pro- 
 tected, 677. 
 money sent by a carrier, but not reaching the creditor till after 
 
 the bankruptcy, not a valid payment, ib. 
 payment from fear of arrest a bona fide payment, i6. 
 alitir, where all creditors paid except one, 678. 
 repayment of money clothed with a trust protected, ib. 
 so payment to avoid a distress, ib. 
 
 so payment in consideration of the surrender of a lien, ii. 
 money received after the bankruptcy by a creditor under a power 
 
 of attorney passes to the assignees, 679. 
 relation only affects payments which may prejudice the assignees, ib.
 
 974 INDEX. 
 
 RELATION TO ACT OF BANKRUPTCY — continued. 
 As to Payment made by or to the Bankrupt. 
 As to payments to the bankrupt, 680. 
 
 difference between effect of payments by and to the bankrupt, ib. 
 
 payment without notice of an act of bankruptcy protected, ib. 
 
 aliter, a payment in anticipation of a consignment, ib. 
 
 payment by a messenger not disputable, 681. 
 
 payment of acceptance relates to the time when given, and not when 
 
 paid, ib. 
 as to payments made to a bankrupt in prison, ib. 
 
 as to fraction of a day in relation of the imprisonment, 682. 
 act of bankruptcy by escaping out of prison relates back to the ar- 
 rest, ib. 
 payment made by coercion of law valid, 683. 
 aliter, payment under an attachment in the mayor's court, ib. 
 where a banker entitled to relief on a bill of interpleader, 684. 
 payment under a commission which is superseded, good, ib. 
 
 2. As to Purchasers, 685. 
 
 contracts two months before commission, though after act of bankruptcy, 
 
 unimpeachable without notice, ib. 
 proviso in case a first commission is superseded, and a second issued, 2&. 
 as to purchasers without notice of an act of bankruptcy, 686. 
 
 purchase of goods paid for in the ordinary course of trade, i6. 
 when goods are not paid for, ii. 
 
 equity will not favour claims of assignees against a fair purchaser, 687. 
 an equitable purchaser as much within the statute as a legal one, 287. 
 where purchase deed ordered to stand as a securit}' for the money boriu 
 fide advanced, ib. 
 as to purchaser with notice, ib. 
 
 need not be averred, that the party had notice, 688. 
 purchases good unless commission sued out within twelve months, ib. 
 to be reckoned frou) the act of bankruptcy, of which purchaser 
 
 had notice, ib. 
 a subsequent act does not in this respect defeat the effect of a 
 former one, 689. 
 
 3. As to other Dispositions of the Bankrupt's Property, ib. 
 indorsement of a bill within the two months has reference to a previous 
 
 delivery of it, ib. 
 when indorsement of a bill of lading relates back to the previous assign- 
 ment of the goods, 690. 
 other property cannot be substituted by bankrupt after bankruptcy for 
 
 goods assigned by him before, ib. 
 bill of sale of a ship at sea before bankruptcy valid, though the requisites 
 of the registry act not completed until after bankruptcy, ib. 
 unless there is gross delay, 691. 
 
 power of attorney to sign indorsement on the register not revoked by 
 bankruptcy, ib. 
 where goods are consigned to and sold by a factor after act of bank- 
 ruptcy of the consignor, proceeds pass to the assignees, iA. 
 
 4. Of Executions and Attachments, 692. ; and see " Execution." 
 levied more than two months before commission, good, ib. 
 
 but if after bankrupt's arrest, when act of bankruptcy is by lying in 
 
 prison, bad, 693. 
 if levy and act of bankruptcy the same day, open to inquire which had 
 
 the priority, 694.
 
 INDEX. 975 
 
 RELATION TO ACT OF BANKRUPTCY — continued. 
 Of Executions and Attachments. 
 
 but this not permitted where an extent of the crown issues on the day 
 of the commissioners' assignment, 694.; and see " Extents." 
 5. What is Notice of an Act of Bankruptcy y 695. ; and see " Notice." 
 RELEASE, 
 
 operation of by one assignee, 324. 
 RELIEF, 
 
 passes to the assignees, 385. 
 REMAINDER, 
 
 passes to assignees, 361. 
 
 where bankrupt entitled to remainder in tail, assignees take only a base 
 fee 352. 
 REMAINING ABROAD ; and see " Act of Bankruptcy;' 2. 
 
 an act of bankruptcy, 47. 
 REMOVAL OF ASSIGNEE ; and see " Assignees," 6. 
 
 when a removed assignee must join in an action, 743. 
 
 when liable in action for money had and received, ib. 
 RENEWED COMMISSION, 153.; and see " Commissio7t," 5. 
 RENT, 
 
 cannot be distrained for after proving for the amount, 192. 265. 
 
 only one year's rent can be distrained for after act of bankruptcy, 265. 
 
 proof may be made for the residue, ib. 
 
 when goods removed, landlord cannot distrain, 266. 
 except when fraudulently removed, 267. 
 
 landlord has no lien unless he actually distrain, ib. 
 
 when he may distrain for rent in advance, ib. 
 
 where the bailiff distraining embezzles the surplus, and becomes bankrupt, 
 tenant can only prove for the amount, 268. 
 REPUTED OWNER, 402. 
 
 1. What Things are within the Statute, ib. 
 enactment of the new statute concerning, ib. 
 confined to personal chattels, 405. 
 
 not fixtures, ib. 
 
 nor shares in a public company whose funds arise from rents of real 
 
 estates, ib. 
 but moveable utensils not fixed to freehold within the statute, 404. 
 unless let on hire by usage of trade, ib. 
 
 as a brewer's or distiller's vats, a dyer's plant, stocking frames, 
 
 ib. 
 so the engines, machinery, and implements of a colliery, ib. 
 semble, exception extends to job-horses and carriages, ib. 
 choses in action within the enactment, 405. 
 as shares in a public company, ib. 
 bills of exchange, ib. 
 policies of insurance, ib. 
 a share in a newspaper, ib. 
 stock in the public funds, ib. 
 a patent for an invention, ib. 
 
 2. What Possession is withiti the Statute, ib. 
 possession more a question of fact than law, ib. 
 possession j}rima facie evidence of ownership, ib. 
 
 when it must be acquired, ib. 
 
 stronger evidence when bankrupt once the ostensible owner, ib. 
 
 but must be accompanied with some reputation of 02vnei-ship, 406.
 
 976 INDEX. 
 
 REPUTED OWNER — continued. 
 What Possessio7i is ivitkin the Statute. 
 
 this reputation may be rebutted by other evidence, 406. 
 secret transfer of property without possession void against creditors, ib. 
 but where transfer notoi'ious, possession may be retained, ib. 
 so a purchase of a house and furniture, with an immediate demise of it, 
 
 may be good, 407. 
 secret execution, defendant remaining in possession of the goods, within 
 the statute, ib. 
 
 although possession is subject to a yearly rental, 40S. 
 and creditor's initials marked on the goods, ib. 
 but where execution notorious, the goods protected, ib. 
 utensils let by a retiring to a continuing partner, within the statute, ib. 
 so goods let to any one under a colourable lease, 409, 
 as to produce of fire insurance on separate property in joint occupa- 
 tion, ib. 
 goods purchased, and left in possession of bankrupt, ib. 
 when a case of reputed ownership, 410. 
 when not, 411. 
 
 criterion for determining a case of this description, ib. 
 goods lying at a wharf in bankrupt's name within the statute, 412. 
 jaliter, when in the name of his agent, ib. 
 
 or if transferred into a purchaser's name before the act of bank- 
 ruptcy, ib. 
 
 though the very day before, ib. 
 or if a delivery order is shown and assented to by the'wharfinger, ib. 
 or where delivery warrants (transferrable without indorsement) are 
 in hands of a bona Jide holder, 4:15. 
 as to proceeds of goods of a captain in East India Company's service, 
 
 who had assigned his privilege, ib. 
 where goods on sale or return within the statute, 414. 
 
 where not, ib. > 
 
 meaning of this contract, ib. 
 when goods sold once actually delivered, the property changed, 415. 
 delivery cannot be qualified by secret stipulation, ib. 
 a control over the goods equal to a delivery, ib. 
 quc£re, as to property removed by real owner from bankrupt's possession 
 
 on the eve of bankruptcy, 416. 
 interest in a newspaper assigned, without an affidavit of the change of 
 
 interest, within the statute, ib. 
 so assignment of share in a public company, share remaining in name 
 
 of the bankrupt, ib. 
 so of a patent, where patentee continues to use the invention, 417. 
 possession of bankrupt must be with consent of true owner, ii). 
 property of infants not affected by reputed ownership, ib. 
 where a secret j)artner, all the property passes to assignees of ostensible 
 
 partner, 418. 
 where property cannot be delivered, not within the statute, ib. 
 
 as ships at sea and their cargoes, ih. ; and see " Ship." 
 so where best delivery made that circumstances admit, 422. 
 when a chose in action assigned, the security must be delivered up, ib. 
 money in hands of a third person already drawn for by bankrupt, not a 
 
 case of reputed ownership, 425. 
 nor accommodation acceptance in hands of drawer, ib. 
 nor the possession of a carrier, ib.
 
 INDEX. 9Y7 
 
 REPUTED OWNER — continued. 
 What Possession is within the Statute. 
 nor where bankrupt permitted to occupy his house and furniture as the 
 
 agent of assignees, 425. 
 nor goods coming to bankrupt's possession after his bankruptcy, 425. 
 nor possession of goods for a specific jmrposc, ib. 
 
 or of money, if kept apart from his general property, ib, 
 or of a banker's cheque, 426. 
 qucBre, where a bankrupt uncertificated bought his own stock, and con- 
 tinued in possession four years, 424. 
 
 3. Possession as Factor, Banker, or Broker, 426. 
 
 For the particulars under these different heads, see the respective titles 
 in the Index. 
 
 4. Possessio7i as Trustee, Executor, or Administrator, 435. 
 For particulars see titles in Index. 
 
 RESPONDENTIA BOND, 
 
 obligee allowed to claim under before contingency happens, 307 
 RETAINER, 
 
 when it may be pleaded to debt on bond, 740. 
 RETURN. See " Habeas Corpus." 
 REVERSIONS, 
 
 pass to assignees, 361. 
 REVOCATION; and see " Devise." 
 
 of cl6visG 124, 
 
 RIGHT OF ACTION. See " Action." 
 
 S 
 SALE, 
 
 of mortgaged property, 1 98. et seq. 
 
 of the bankrupt's property by the assignees, 331, 
 SALE OR RETURN ; and see " Reputed Owner." 
 
 as to goods consigned on, 414. 
 
 meaning of the contract, ib. 
 SALESMAN, 
 
 of cattle or sheep, a trader, 26. 
 SCANDAL, 
 
 in petitions, how dealt with, 836. 
 SCHOOLMASTER, 
 
 not liable to bankruptcy, 35. 
 SCIRE FACIAS; and see "Actions," 3. 
 
 when it lies by assignees on a judgment and execution obtained by bank- 
 rupt, 387. 754. 
 
 not when defendant brings a writ of error, 755. 
 
 when judgment on recovered by bankrupt, assignees need not bring a new 
 scire facias, 754. 
 
 when it lies by assignees to try the bankruptcy after a levy by the bankrupt 
 subsequent to the bankruptcy, 755. 
 SCOTLAND ; and see " Certificate," 6. « Assignment," 4. 
 
 where part of bankrupt's property in, 1 70. 
 
 property in passes to assignees, 399. 
 
 effect of discharge under sequestration obtained in, 607. 
 
 decisions of courts in, as to composition contract, 815. 
 SCRIVENER, 
 
 liable to bankruptcy, 23. 
 
 when an attorney considered a scrivener, 23. 
 
 when not, 24. 
 
 3 R
 
 978 INDEX. 
 
 SEALING COMMISSION, ill.; and see " Commissioji:' 
 SEARCH WARRANT; and see " Messenger." 
 
 when granted, 170. 
 SECOND COMMISSION, 126.; and see ^' Commission;' 5. 
 
 same petitioning creditor cannot sue out without leave, 122. 
 
 proof under, how it operates, 187. 
 
 operation of certificate under, where first commission superseded, 610. 
 
 where certificate pleaded under, what bankrupt bound to prove, 619. 
 what plaintiff must prove to defeat it, ib. 
 
 when superseded, 810. 
 SECRET PARTNER, 7 1 0. Sec « Dormant Partner." 
 SECRETARY OF BANKRUPTS, 
 
 duty to search for any former certificate, 576. 
 SECURITY, 
 
 proof by creditor holding, 118. ct seq. ; and sec " Proof" 1 . 
 
 must be produced, 1 96. 
 
 may be sold upon application of the assignees, 179. 199. 
 
 where creditor has two demands, when it may be applied to reduce the 
 one not proveablc, 210, 
 
 for costs, when required, 861.; and see " Costs" 5. 
 SEIZURE. See « Messenger." 
 SEPARATE COMMISSION, 129. et seq. 812. ; and sec " Covimission," 4. 
 
 effect of, 630. et seq. ; and see " Partners" 1 . 
 SEPARATE CREDITORS, 
 
 proof by, 654. ; and see " Partners" 5. 
 SEPARATE DEBTS, 643. ; and sec " Partners," 5. 
 SEQUESTRATION, 
 
 fraudulent, an act of bankruptcy, 62. 
 
 when a Scotcli sequestration preferred to an English commission, 127. 400. 
 question of depending in the Scotch courts, no ground for staying 
 
 certificate, 581. 
 effect of discharge under one obtained in Scotland, 607. 
 
 of a living, when a clergyman bankrupt, 360. 
 SERJEANT AT fvIACE, 
 
 office of not assignable, 359. 
 SERVANTS, 
 
 wheti master bankrupt, entitled to six months' wages, 234. 
 
 must prove for the residue, ib. 
 SERVICE; and see « Petitions." 
 
 of petition to stay certificate, 589.; and see " Certificate" 4. 
 
 of petition f -r a supersedeas, 820. 82'1. ; and see " Siqwrsedeas" 3. 
 
 of petitions in general, 311. 840. 
 
 of an order on a petition, 844. 
 SET-OFF, 
 
 1. Of the Right of Set-off generally in Banhrtiptcy, 698, 
 
 provision of the new statute as to mutual credit, and mutual debts, ib. 
 
 every proveablc debt may be set off with one restriction, ib. 
 
 alterations in the former law, 699. 
 
 origin of right of set-off in bankruptcy, Ht. 
 
 more extensive in bankruptcy than under the general statutes, 700. 
 
 2, Construction of the Term " Mutual Credit" and herein of Cases of Trust 
 
 and Deposit, 701. 
 nmtual credit confined to a case where the party has a lien for his general 
 
 balance, ib. 
 or where tiic credit given must termuiate in a debt, ib. 
 not extended to a mere deposit of property, with no authority to turn it 
 
 into money, 705.
 
 INDEX. 979 
 
 SET-OFF — continued. 
 
 Construction of the Term " Mutual Credit," ^c. 
 distinction between lien and set-off, 703. 
 
 where a trust between two parties, the object of the trust being the sa/e 
 of goods, this a case of mutual credit, 704. 
 
 as in a joint adventure to buy and sell pearls, il>. 
 so a bill of exchange deposited to pay for goods, ib. 
 or insurance broker, entrusted with a policy, to receive a loss, 705. 
 acceptance of a bill, though not due till after bankruptcy, within the 
 
 meaning mutual credit, 106. 
 so an acceptance in the hands of a third person, 708! 
 so a constructive delivery of goods, 707. 
 not a bailee for a special and limited purpose, ib. 
 
 3. As to joint and separate Debts, 708. 
 
 no set-ofF allowed between them for what reason, ib. 
 
 where a joint debt may be set oft' as a separate debt, 709. 
 
 joint and several bond may be set off against a separate debt, 710. 
 
 so a separate debt from one partner against a joint debt, ih. 
 
 when a debt due from the principal firm against a demand on a note 
 
 by a minor firm, ib. 
 where some partners only of a firm become bankrupt, the enactment as to 
 
 mutual credit does not apply, ili. 
 
 4. Of Set-off between particular Persons, 711. 
 
 executor cannot set off a debt due to him as executor against a debt 
 due from him on his private account, ib. 
 
 I)ut when he admits assets, a debt to iiim on his private account 
 
 may be set off against a legacy payable by him as executor, i^. 
 so he may set off a debt due to his testator against a legacy be- 
 queathed to the debtor, ib. 
 a trustee cannot set off a debt due to him on account of his trust against 
 a debt due from him in his own right, 712. 
 but in an action by a trustee, defendant may set oft" a debt due from 
 the cestui que trust, ib. 
 when directors of a piiblic company cannot set off" a debt, due in respect 
 of a loan, against a demand for the amount of the stock, ib. 
 when they are entitled to such set-off, 713. 
 debt due to or from the wife, dum sola, cannot be set off in an action by or 
 against the husband, ib. 
 
 but a legacy given to her during her coverture may, 714. 
 when insurance broker may set off' against the underwriter, ib. 
 when not, 715. 
 
 not where he discloses the name of his principal, ib. 
 may have the same set-off in respect of a lien, ib. 
 undcnuriter may set off premiums due before the bankruptcy against a 
 
 loss accruing afterwards, 716. 
 where a purchaser may set off a debt due from 2l factor against the claim 
 of the principal, 717. 
 
 where a pawnee of goods for the money advanced to the factor, 718. 
 owner redeeming goods may set off against assignees of the factor, 
 718. 
 
 5. Of Set-off on Bills and Notes, ib. ; and see " Bills and Notes." 
 
 6. Of an Equitable Set-off, 720. 
 
 upon an usurious contract, though void at law, 721. 
 where a separate debt may be set off against a joint and several one, ib, 
 or against a joint debt to prevent circuity, 722, 723. 
 
 3 R 2
 
 980 INDEX. 
 
 SET-OFF — continued. 
 Of an Equitable Set-off. 
 when an agent allowed to set off costs of a reference against the pro- 
 ceeds of goods, 722. 723, 
 costs in equity may be set ofFthough not taxed before bankruptcy, 724. 
 7. Of the Mode of balancing the Accounts, ih. 
 may be done either by commissioners, or on the trial of an action, ib. 
 whether an account can be disputed after being liquidated before the 
 
 commissioners, ib, 
 how interest to be calculated, ib. 
 SETTLEMENT. See " Marriage Settlement:' 
 SHEEP SALESMAN, 
 
 a trader, 26. 
 SHERIFF ; and see " Actions," 2. 
 
 when action lies against, for not paying over money levied to assignees, 
 
 588. 
 when liable to action of trover by assignees, 746. 
 not liable in trespass before assignment, ib. 
 what amounts to a conversion by him, 747. 
 when he will be safe from the claims of the assignees, ib. 
 when the Court will assist him, 74 8. 
 
 proper course to be pursued when parties refuse to indemnify him, 749. 
 if he voluntarily take a part, Court will not interfere, ib, 
 as to his right to jwundage where he levies after the bankruptcy, 750. 
 when not compellable to return writ without indemnity, ib. 
 SHIP, 
 
 where captain of refuses to deliver up goods on board to messenger, 173. 
 at sea, what necessary to constitute a legal sale of, 418. 
 bill of sale to be delivered to purchaser, ib. 
 requisitions of the registry act to be complied with, 419. 
 
 have relation back to the bill of sale, 691. 
 bill of sale passes absolute property in, ib. 
 power of attorney to sign an indorsement on register not revoked 
 
 by bankruptcy, ib. 
 where purchaser can take possession, he must do so, 419. 
 sufficient when before the bankruptcy of vendor, ib. 
 if ship in foreign port, actual possession need not be taken, 420. 
 port of Dublin considered a foreign port, ib. 
 when a share of only sold, delivery of bill of sale sufficient, ib. 
 contracted to be built by bankrupt, and actually registered in name of pur- 
 chaser, not within the statute as to reputed ownership, though not 
 completed by bankrui)t, ib. 
 alitcr, a barge built but not delivered, 420. 
 
 when a purchaser, though not entitled to ship, entitled to a policy of in- 
 surance, 421. 
 wnen, though registered in name of one partner, it forms part of joint 
 estate, ib. 
 
 where held to belong to the separate estate, 641. 
 executory contract for sale of, within the registry act, 841. 
 mortgage of, not a case of reputed ownership, ib. 
 lien on for repairs, &c. ceases, when possession parted with, 484. 
 unless repairs, &c. take place abroad, 485. 
 but master has no lien on for money expended for repairs, ib. 
 though he can hypothecate for them, ib. 
 nor any lien for his wages, 486. 
 nor on the freight, ib.
 
 INDEX. 981 
 
 SHIP — continued. 
 
 but a consignee of a ship, to whom the register is delivered, has a 
 lien for repairs, &c., 486. 
 produce of insurance as to separate interest of joint owner, 642. 
 SHIP-OWNER, 
 
 when liable to bankruptcy, 27. 
 
 has a lien on the cargo for the freight, 486. 
 
 but not for a claim for dead freight, ib. 
 
 nor any lien on the freight where he parts with the actual possession of 
 
 the ship, ib. 
 but the mere occujiation of ship by the freighter, without any demise of it 
 
 to him, will not prevent the owner's lien, if). 
 part-owners have no lien on the share of another part-owner, 487. 
 SHIPWRIGHT, 
 a trader, 25. 
 
 where he gives a certain credit, has no lien except by special agree- 
 ment, 484. 
 SHOEMAKER, 
 
 may be a bankrupt, 27. 
 SHORT BILLS; and see " Banker." 
 
 in hands of a banker, must be given up by his assignees, 16. 429. 
 SIGNATURE, 
 
 of certificate, 562. 572.; and see " Certificate" 1, 2. 
 of petition, 588, 837. 
 SIX CLERKS OFFICE, 
 
 place of a sworn clerk in, not assignable, 359. 
 SMITH, 
 
 a trader, 27. 
 SMUGGLER, 
 
 may be bankrupt, 28. 
 SOLICITOR, 
 
 when liable to bankruptcy, 23. 
 
 when a debt on his bill will support a commission, 91. 
 when a country commission may be directed to attornies, 115. 
 1. Of his general Rights and Duties, 865. 
 how the solicitor to the commission nominated, ib. 
 bound to protect the bankrupt's estate, ib. 
 ought not to act as solicitor for the bankrupt, 866. 
 or as a commissioner, 147. 866. 
 or as banker to the estate, 866. 
 or to purchase any part of bankrupt's property, ib. 
 rules to be observed by in siling out commission, ib.; and see 106. ct seq. 
 bound to produce the proceedings when legally required, ib. 
 whether so bound on a sid)j}cena duces tecum, 790. 868. 
 
 or when the production may prejudice the assignees, 868. 
 should be ready to produce them, if ordered by the Court, 869. 
 no lien on them, except when commission superseded, ib. 
 as to the production of other papers, ib. 
 
 must give up bankrupt's papers to assignees, when no lien on them, ib. 
 when privileged from, arrest, 870. 
 when called upon to explain his conduct, ib. 
 cannot execute the bond to the Chancellor for an infant, ib. 
 must pay the commissioners their fees, ib. 
 when liable to the messenger, 174. 870. 
 ought not to withdraw a petition without leave, 871.
 
 982 INDEX. 
 
 SOLICITOR — continued. 
 
 Of his general Rights and Duties. 
 cannot take a bond, &c. from his client during pendency of a suit, 866. 
 
 but may when suit terminated, 867. 
 attorney in a cause cannot be changed witliout leave of the Court, ib. 
 but the solicitor in a cause may be, ih. 
 2. Of his Lien for Costs, 871. 
 
 has a lien upon all deeds of bankrupt deposited before the bankruptcy, ib. 
 but not for those deposited after, ib. 
 
 though lien attaches for business done after as well as before, 872. 
 lien goes to his personal representative, ib. 
 how far lien on papers in a suit extends, ib. 
 as to the lien of an agent to a country attorney, ib. 
 what is a waiver of lien, 873. 
 
 taking security for his bill, ib. 
 
 entering into a sj)ecial contract for payment of it, ib. 
 obtaining an order to prove, ib. 
 extent of lien on deeds, &c., ib. 
 no lien on papers deposited for a particular jiurpose, 872. 
 
 nor on those which come to his possession by accident, as against 
 
 the other party, 87.5. 
 nor on his client's tuill, ib. 
 
 nor upon documents in his possession as steward of a manor, ib. 
 lien extends to money in his hands, 874. 
 and to an estate recovered in a suit, ib. 
 so to money in the hands of the sheriff^ ib. 
 or to a sum awarded by an arbitrator, ib. 
 or to costs ordered to be paid, ib. 
 
 but on a fund decreed only a particular, and not a general lien, 875. 
 and the same with respect to an agent, ib. 
 no lien on a fund in Court, when he declines to act any further, ib. 
 as to lien in setting ofi" costs in diiferent actions, ib. 
 
 uiilerencc in the practice of the Courts in this respect, 876. 
 when no claim on a defendant compromising plaintiff" 's demand, ib. 
 
 contra m exchequer, 877. 
 no lien on interlocutory costs, 876. 
 or on a defendant's I'ody, 877. 
 must have a regular authority before he can claim a lien, ib. 
 3. Of the Taxation of his Bill, and his Eemedy for Payment of it, ib. 
 how costs of a conuuission are to be taxed, ih. 
 where no conunission subsisting, 878. 
 where of course to refer a bill for taxation, ib. 
 who liable to solicitor where no assets, 879. 
 how bound to appropriate a general payment, ib. 
 when guilty of a contempt, order refused to tax his bill, ib. 
 no claim for costs of suit carried on without due authority, 880. 
 only one solicitor recognised under a commission as to any claim for 
 
 costs, ib. 
 bill may be taxed after commission sued out u[)OU it, ib. 
 bankrupt's solicitor cannot charge estate with costs incurred after the 
 
 bankrsptcy, ih. 
 bill cannot l)e taxed upon the trial of an action, or after a judgment 
 recovered on it, ib. 
 
 nor after an account settled, 881. 
 except in a case of fraud, ib.
 
 INDEX. 983 
 
 SOLICITOR — conthmed. 
 
 Of the Taxation of his BUI, and his Remedy for Payment of it. 
 
 or when settled daring pendency of a cause, if taxation applied 
 for by other persons, 881. 
 when a bill is taxable, ib. 
 
 though part for conveyancing, if other part for business in Court, 
 
 882. 
 so when part is for holding courts of a manor, ib. 
 when action brought on bill in any Court, that Court may refer it 
 
 to be taxed, ib. 
 when two separate bills are delivered together, ib. 
 bill for business at the quarter sessions, ib. 
 or in the court of great sessions in Wales, ib. 
 
 charge for preparing affidavit of debt renders the whole lull tax- 
 able, ib. 
 
 or for |)reparing a warrant of attorney, il. 
 or suing out a dedimus j)otestatum, ib. 
 bill taxable after the attorney's death, ib. 
 when not taxable, 88.3. 
 
 if the ivhole is for conveyancing, 881. 
 
 or for prosecuting an appeal to the House of Lords, «S3. 
 
 or for preparing an affidavit (not sworn) of a petitioning creditor's 
 
 debt, where no commission issued, ib. 
 or for business transacted for a charitable foundation, where the bill 
 
 not signed by the attorney, ib. 
 where a third person applies who has agreed to pay the bill for 
 
 the client, ib. 
 where the party agrees to pay the attorney a sum certain, quare, ib. 
 bdl of an agent taxable on application of the country attorney, 881. 
 mode of compelling an attorney to deliver his bill, ib. 
 after once taxed, a bill not retaxable, ib. 
 
 nor can the amount be questioned in a suit in equity, 885. 
 bound by delivery of a former bill, ib. 
 
 when he may proceed to tax his bill after cause settled without his con- 
 currence, ib. 
 as to the costs of taxation, ib. 
 
 client liable for, when less than a sixth deducted, ib. 
 
 course in bankruptcy the same, 886. 
 
 where the attorney previously agreed to accept a less sum than 
 
 the amount of the bill, ib. 
 when the disallowance is of certain expenses not objectionable in 
 
 their nature or amount, ib. 
 when items are charged in respect of a retainer not proved, ib. 
 when deducted because facts alleged are not established, ib. 
 executor of attorney not liable for costs of taxation, 887. 
 where an attorney ordered to pay interest besides costs of tax- 
 ation, ib. 
 when entitled to costs of taxation, he should demand them at the 
 time, ib. 
 4. Of Actions and other Proceedings by and against the Solicitor, 887. 
 
 bill must be signed, delivered, and left with the party a month before 
 
 action brought, 888. 
 delivery at party's counting-house insufficient, ib. 
 but to one of several assignees sufficient, ib. 
 bill for obtaining a bankrupt's certificate must he delivered, ib, 
 ■5 R 4
 
 984 INDEX. 
 
 SOLICITOR — continued. 
 
 Of Actions and other Proceedings by and agaiiist tJie Solicitor. 
 so for business done in the insolvent court, 899. 
 action may be brought for business done under a commission, though bill 
 not taxed, 889. 
 or though the attorney is not a solicitor in chancery, ib. 
 but assignees not liable as defendants for costs of issuing commis- 
 sion, ib. 
 commission being fruitless does not prevent the right of action, ib. 
 when a solicitor restrained by injunction from negotiating a note, ib. 
 where a sixth taken off bill, solicitor cannot sue without deducting costs 
 
 of taxation, 890. 
 an attorney may support a commission on his bill, though not previously 
 delivered, 91. 890. 
 
 or though pending an order for the taxation of it, ib. 
 so he may in like manner set off" the amount of it, 893. 
 solicitor not liable in general to bankrupt for suing out commission 
 against him, 890. 
 
 but liable to be petitioned against for the commissioners' fees, ib. 
 or to account for property received under the commission, 891. 
 attestation to petition by solicitor in his own behalf dispensed with, i6. 
 when action brought before a month, how to be taken advantage of, ib. 
 bill need not be delivered a month previously by the executor of 
 
 an attorney, ib. 
 but the Court will refer it to be taxed, ib. 
 evidence necessary in support of an action on the bill, ib. 
 in an action for ivords, proof that plaintiff acted as an attorney is suffi- 
 cient, 893. 
 whether an attorney can recover for money actually cx])endcd without 
 
 the previous delivery of his bill, ib. 
 if one single taxable item in a bill delivered, the delivery must be strictly 
 within the statute, 894. 
 
 though the other items are even tiot connected with the business of 
 an attorney, ib. 
 where no bill delivered, qucere, whether an attorney can recover for any 
 part of his demand, connected with his character of an attorney, ib. 
 may recover for payments not referable to that character, 895. 
 an agent need not deliver his bill to support his right of action upon it, ib. 
 where an attorney brings an action pending an order for taxation, 896. 
 attorney cannot sue for business done entirely by his clerk, ib. 
 after verdict Court will not stay the 2^ostca to have the bill taxed, ib. 
 solicitor may sue in equity for the amount of his bill, if business done in 
 
 the same court, ib. 
 aider his executor, 897. 
 5. Of his Liability for Misconduct, and herein of his general Liability, ib. 
 how punishable when he improperly lends his name, ib. 
 for suing out a fraudulent commission, 103. 897. 
 taking upon himself inconsistent characters under a commission, 898. 
 how an ap|)lication for his removal must be made, ih. 
 not amenable for attesting a petition whilst in prison, ib. 
 when chargeable with costs, ib. 
 
 falsely describing the commissioners, ib. 
 
 improperly striking a second docket, 899. 
 
 suing out a concerted commission, ib. 
 
 neglect to obtain commissioners' signatures to certificate, ib. 
 
 presenting an unnecessary petition, ib.
 
 INDEX. 985 
 
 SOLICITOR — continued. 
 
 Of his Liability for Misconduct, and herein of his general Liability. 
 reciting petition verbatim in aflicUivit of service, 899. 
 making a scandalous affidavit, ib. 
 refusing to deliver up the proceedings, ib. 
 when not chargeable, 900. 
 when chargeable in other proceedings, ib. 
 when liable to an action for damages, ib, 
 
 when not liable, 901. 
 fatal variance in action against, 902. 
 may make himself personally liable, ib. 
 SOLVENT PARTNER. See " Partners." 
 SPECIALTY CREDITOR, 
 
 right of against the heir of his debtor, 181. 
 STAMP ; and see " Probate." 
 
 objection to a bill of exchange for want of, 245. 
 STAMP DUTY, 
 
 taken off proceedings in bankruptcy, 383. 777. 
 STATUTE, 
 
 does not operate upon bankrupt's lands, unless execution taken out, 351. 
 STATUTE OF LIMITATIONS. See " Limitations." 
 STAYING OF PROCEEDINGS, 
 
 under a commission, when granted, 1 14. 
 in an action against commissioners, 161. 
 STEWARD, 
 
 to the King, or an inn of court, not liable to bankruptcy, 35. 
 STOCK, 
 
 buying and selling, not a trading, 37. 
 when Lord Chancellor may order transfer of, 12., 
 
 when bond to transfer upon request, how amount of proof regulated, 221. 
 when proof regulated by the price at date of the commission, ib. 236. 
 mode of calculation when stock to be replaced by instalments, ib, 
 when trustee bankrupt, may be transferred to new trustee, 222. 
 how stock of bankrupt may be transferred to assignees, 385. 
 when it will be ordered to be transferred into name of accountant- 
 general, 384. 
 within the enactment as to reputed ownership, 405. 
 when it does not pass to a factor's assignees, 427. 
 comes within the description " goods and chattels," 441. 
 STOCK-BROKER, 
 
 whether liable to bankruptc}', 22. 38. 
 STOCK-JOBBING, 
 
 when it renders void the certificate, 593. 
 STONE-QUARRY, 
 
 working and selling from, when a trading, 30. 
 when not, 36. 
 STOPPAGE IN TRANSITU, 449. 
 
 assignment does not pass goods liable to, ib. 
 origin and nature of the right of stoppage, ib. 
 can only be exercised when vendee proves insolvent, 450. 
 1. As to Questions between Consignor and Consignee, 451. 
 when goods delivered to a common carrier, or on board a general ship, 
 may be stopped, ib. 
 
 though such delivery is by the appointment of the consignee, ib. 
 so where delivery to a packer or ivharjinger to be forwarded, 452. 
 so plate delivered to an engraver, ib.
 
 986 INDEX. 
 
 STOPPAGE IN TRANSITU — cow^mwed. 
 
 As to Questions between Consignor and Consignee, 
 alittr, where buyer uses the warehouse of the carrier, &c.j as Ms own, 452. 
 or where there is a symbolical delivery, ib. 
 
 as of the key of a warehouse, or of clock warrants, 455. 
 or where consignee on arrival of goods, puts his mark upon them, «6. 
 a mere/>nor claim by consignee does not prevent the right, ib. 
 or the mere payment of freight, ib. 
 but right defeated by delivery to vendee's agent, ib. 
 
 or where vendor gives a delivery note on the wharfinger, and nothing 
 remains to be done to complete the sale, 454. 
 contra where something remains to be done, ib. 
 where goods remain in vendor's warehouse at a rent, cannot be 
 stopped, except in what case, 455. 
 transitiis determined where a j)art delivery, except when, ib. 
 
 where a delivery on board a ship in possession of vendee, ih. 
 but this subject to the laws of a foreign state, 456. 
 and of no effect where vendee has no actual control over the 
 ship, ib. 
 by delivery to vendee at a wharf, and goods then shipped, 455. 
 no right where cargo pledged,and bill of lading indorsed and delivered, 456. 
 right continues till the performance of quarantine, 457. 
 qucere, whether vendee may meet goods upon the road, and determine 
 
 the transitus, ib. 
 right not defeated by vendor handing over shipping note and delivery 
 
 order to the wharfinger before arrival of the goods, 458. 
 may be exercised without taking actual possession, ib. 
 delivery by mistake, after notice to the carrier not to deliver, does not 
 
 change the property, ib. 
 an injunction not granted to stop in transitu, ib. 
 consignor may reserve to himself the right of determining when he will 
 
 part with all control over the goods, 459. 
 goods in the king's warehouse, or their proceeds, may be stopped, i6. 
 right not barred by payment of part only of the price, ib. 
 
 nor by an acceptance of a bill jn-oved to be dishonored, ib. 
 where the transaction is in effect a sale, consignor mtiy stop, 4 GO. 
 but a mere agent, who is neither vendor nor consignor, cannot, ib. 
 a lic7i on goods does not give the right of stoppage, ib. 
 money remitted for a particular purpose may be stopped, 461. 
 
 but not a general remittance from a debtor to his creditor, ib. 
 consignor may stop goods, though consignee jointly interested, ib. 
 so an alien enemy trading under a licence, ib. 
 vendor when paid cannot stop against a subsequent vendee, ib. 
 right not defeated by any usage among carriers, ib. 
 2. As to Questions between Consignor and Third Persons, after Resale or 
 Alienation by the Vendee. 
 how such right till lately depended, 4G2. 
 alteration of the law in this respect, ih. 
 
 holder of the bill of lading now deemed the true owner, except when, jA. 
 sale by an agent valid, except in what case, 463. 
 as to right of consignor, when consignee assigns the bill of lading, ib. ; 
 
 and see " B'dl of Lading." 
 right of stoi)page not to defeat the rights of third persons, 466. 
 
 as where a delivery order is partly acted on, and goods sold to a 
 
 second purchaser, ib. 
 or where the second sale is with the assent of the original vendor, 467.
 
 INDEX. 987 
 
 STOPPAGE IN TR\NSITU — continued. 
 
 As to Questions betiueen Consignor and Third Persons, SfC. 
 
 but a resale by vendee, never in possession of the bill of lading, 
 does not destroy the vendor's right, 467. 
 right of stoppage now defeated by factor pledging the goods, or the bill 
 
 of lading, ib. 
 aliter, where the consignor has not indorsed it, 468. 
 quccre, where vendee has transferred the bill of lading indorsed to his 
 factor, merely to sell the coods without any specific pledge, 469. 
 STRANGERS TO THE COMMISSION, 
 Lord Chancellor's jurisdiction over, 14. 
 whether depositions admissible in evidence against, 787. 
 STRIKING DOCKET, 106. 
 SUBMISSION TO ARBITRATION, 
 not revoked by a commission, 124. 
 SUBPCENA DUCES TECUM, 790. 868. 
 
 SUITS BY AND AGAINST ASSIGNEES, 726. See " Actions: 
 SUMMONS, 
 
 power of commissioners as to issuing, 1 53. 
 SUNDAY, 
 
 denial on, not an act of bankruptcj', 58. 
 SUPERSEDEAS, 
 
 when commission superseded at the Bankrupt Office as of course, 123. 
 when superseded, creditor restored to his right of election, 184. 
 petition pending for, not a good ground for staying certificate, 581. 
 when first commission superseded, how certificate operates under a second 
 commission, 610. 
 1 . Of Applications for a Siqyersedeas by the Bankrupt, 803. 
 when a commission will be superseded, ib. 
 power of superseding discretionary in the Lord Chancellor, 804. 
 commission may be superseded, though strictly unimpeachable, ib. 
 grounds for the application, ib. 
 
 delay in prosecuting commission, ib. 
 bankrupt being an infant, 805. 
 or a feme covert, ib. 
 not a trader, ib. 
 
 where not estopped from applying on this ground, tb. 
 insufficient act of bankruptcy, 806. 
 
 when this a cause only for suspending the advertisement, ib. 
 preference of petitioning creditor, ib. 
 petitioning creditor being an infant, 807. 
 iiisufficiency of his debt, ib. 
 
 where it accrues subsequent to act of bankruptcy, ib. 
 where barred by statute of limitations, ib. 
 petitioning creditor having bankrupt in execution, ib. 
 commission fraudidently or vexatiously issued, 808. 
 
 issued tor a different object, 809. 
 country commission not having names of two barristers, \h. 
 commissioner being a creditor, 810. 
 want of prosecution, ib. 
 two commissions pending, ib. 
 third commission, 812. 
 separate and joint commission pending, ib. 
 consent of creditors, 81.3. 
 
 but not a mere offer to satisfy creditors, 812. 
 composition contract, 813.
 
 988 INDEX. 
 
 SUPERSEDEAS — continued. 
 
 Of Ajjjilications for a Supersedeas by the Bankrupt. 
 
 general order as to the holding of the meetings, and the conduct 
 
 of the commissioners, 814. 
 decisions of the Scotch courts respecting it, 815. 
 bankrupt cannot apply for supersedeas before surrender, 816". 
 
 except when, ib. 
 bankrupt attainted cannot petition, 817. 
 
 but a commitment by commissioners does not wholly incapacitate him, ib. 
 not precluded by a Judge's order, 818. 
 what are no grounds for applying for a supersedeas, ib. 
 misnomer, when he hatl used the wrong name, ib. 
 
 where the name is idem sonans, ib. 
 misdescrijjtion, where well known, ib. 
 
 what a valid objection for this cause, ib. 
 mere ^j?oAai«727t/ that bankrupt is not a subject for a commission, 819. 
 
 2. Of Applications for a Supersedeas by other Persons, ib. 
 by 2}etitioning creditor, ib. 
 
 misnomer of bankrupt a good ground, when an existing commission 
 by his right name, 820. 
 
 petition must be served upon bankrupt, ib. 
 any other creditor may petition, ib. 
 
 but must first discontinue an action at law, ib, 
 
 in case of tampering with bankrupt, petition dismissed, 821. 
 
 after certificate cannot, in general, petition, ib. 
 
 but this rule not applicable to any case o^ fraud, 822. 
 
 preference of petitioning creditor a good cause for application, ib. 
 
 so where the act of bankruptcy is concerted, ib. 
 
 or where there is unreasonable delay of the petitioning creditor, 823. 
 as to applications by assignees, ib. 
 
 3, Practice iqion Petitions to siq^ersede, 824. 
 when notice to creditors necessary, ib. 
 service of petition on bankrupt, ib. 
 affidavit of service, ib. 
 
 when party applying to supersede will be left to his action, ib. 
 
 when commission will not be superseded on petition, ib. 
 
 when matter referred back to commissioners, 825. 
 
 proceedings must be produced, ib. 
 
 bankrupt not permitted to inspect them, ib. 
 
 when an issue will be directed, 826. 
 
 when petition ordered to stand over, ib. 
 
 affidavit accounting for delay of trial, ib. 
 
 when a particular required of the act of bankruptcy relied on, ib. 
 
 when an action directed, 827. 
 
 bill of discovery cannot be filed without leave, ib. 
 
 when a commission granted to examine a witness abroad, ib. 
 
 proceedings ordered to be suspended when action brought, ib. 
 
 when petition dismissed without any counter-petition, ib. 
 
 when supersedeas will not be delayed, ib. 
 
 new trial refused after concert found, 828. 
 
 when the parties will be ordered to be examined, ib. 
 
 mode of applying for a new trial, ib. 
 
 when petitioning creditor will be ordered to defend, 82y. 
 
 commission cannot be superseded before sealing, ib. 
 
 bankrupt may petition in forma pauperis, ib.
 
 INDEX. 989 
 
 SUPERSEDEAS — continued. 
 
 Practice upon Petitions to supersede. 
 
 Vice-Chancellor's authority as to the supersedeas, 829. 
 what required when sales have taken place, ib. 
 
 4. Effect of the Supersedeas, 830. 
 
 mere order for supersedeas ineffectual, ib. 
 supersedeas inoperative before delivery to messenger, ib. 
 general effect of supersedeas under former law, ib. 
 title of purchasers now not impeachable, except in what case, 851. 
 indemnity of persons when commission superseded, ib. 
 creditor may afterwards proceed with a previous action, 832. 
 Lord Chancellor's jurisdiction not determined by the supersedeas, 12.832. 
 contract of sale under a superseded commission cannot be enforced under 
 a second, 833. 
 
 5. Of the Writ of Procedendo, 833. ; and see " Procedendo." 
 SUPPLEMENTAL PROCEEDINGS, 
 
 certificate, 574. 
 petition, when necessary, 841. 
 affidavit, when permitted. 111. 
 warrant, 528. 
 SURETY ; and see " Annuities." « Bills of Exchange." 
 creditor may take out commission against, 9 i . 
 not estopped by proof of the creditor from suing bankrupt, 187. 
 
 1. Rights of a Creditor against the Bankrupt Surety, 285. 
 how right to prove against the surety depends, ib. 
 
 where engagement absolute, creditor may prove as of course, ib. 
 deducting what he has already received, ib. 
 
 when the engagement contingent, cannot be proved before contingency, ib, 
 
 but proof may be against bail, though not fixed till after bankruptcy, ib, 
 
 where surety discharged by creditor taking a collateral security, &c. 
 288.310. 
 
 but discharging surety no discharge of principal or co-surety, ib. 
 
 and though creditor compound with principal, he may stipulate to re- 
 serve his remedy against the surety, ib. 
 
 surety still liable on bond for performance of covenants in a lease, though 
 principal discharged by bankruptcy, ib. 
 
 surety not bound unless agreement contain the consideration for the pro- 
 mise, 289. 
 
 2. Rights of the solvent Surety against the Bankrupt Debtor or Co-surety, 
 disabilities of the surety under the former law, 289., et seq, 
 
 removed by new statute, 291. 
 may now stand in place of the creditor, or may prove himself, ib, 
 bail have the same privilege, 292. 
 
 but surety not comjielled to prove, nor bound by proof of creditor, ib. 
 except in what case, ib. 
 
 but barred by certificate if he does not prove, 293, 294. 
 entitled to creditor's proof to the extent of a balance unsatisfied by a 
 
 counter-security, 293. 
 on a bond to the king for stamp duties may prove against principal, 294. 
 entitled to the rights of the creditor, in respect of the certificate, as well 
 
 as of the dividends, ib. 
 surety for rent not due at the bankruptcy cannot prove against the tenant 
 
 294. ' 
 
 surety paying only part of debt cannot prove unless paid in discharge of 
 
 the whole, 295. 
 cannot prove for interest accruing since bankruptcy, ib.
 
 990 INDEX. 
 
 SURETY — continued. 
 
 Rights of the solvent Surety against the Bankrupt Debtor or Co-surety. 
 
 nor on a fresh bond substituted for a former one after bankrupt's 
 certificate, 295. 
 
 nor does this give him a claim against a co-surety, 296. 
 when a retiring partner is in the nature of a surety, as to the continuing 
 
 partner, 297. 
 a co-surety of bankrupt not discharged as against the creditor by bank- 
 rupt's certificate, 595. 
 
 though barred as against the bankrupt, 596. 
 as to plea of bankruptcy and certificate in action by surety, 616. 
 SURPLUS, 
 
 of the bankrupt's right to, 548.; and see " Bankrupt" V. 4. 
 as to right of solvent partner to, 636. 
 SURRENDER: 
 
 of bankrupt, 142. 148. 507. 816.; and see " Bankrupt"!. " Superse- 
 deas" 1. 
 of copyhold when fraudulent, an act of bankruptcy, 75. ; and see " Copy- 
 hold." " Act of Bankruptcy" 12. 
 in discharge of bail does not determine the creditoi*'s election, 191 = 
 when Court will enlarsre the time for, 541. 
 SUTLER, 
 
 not liable to bankruptcy, 55. 
 
 T 
 TACKING. See " Mortgn<rc" 
 TAIL. See " Estate TaH." 
 TAILOR, 
 
 a trader. 
 TANNER, 
 
 a trader, 27. 
 TAVERN-KEEPER, 
 
 ti trB-dcr 25. 
 TAXATION OF COSTS, 845. 847. 877. ; and sec " Costs." « Solicitor," 3. 
 TAXES, 
 
 may be proved by collector or assessor, 301. 
 
 where collector bankrupt, one of the inhabitants may prove, ib. 
 or where two joint collectors, then the solvent co-collector, ib. 
 
 lien of the Crown for, 495. 
 TENDER OF AMENDS, 165.; and see" Commissioners," 7. 
 THIRD COMMISSION, 127. 812.; and see "Commission," 5. "Super- 
 sedeas" 1. 
 TITLE, 
 
 assignees bound to make one, 333. 
 
 not impeachable after Si. supersedeas, in what case, 832. 
 TITLE DEEDS. See " Equitable Mortgage." 
 TITLE OF PETITION, 837. 
 TORT ; and see " Damages." 
 
 no proof for, 280. 
 
 assignees cannot sue for a personal tort to the bankrupt, 741. 
 TOWN COMMISSION, 106. 120. 805.; and see " Commission," 1. 
 
 where there is a competition for a town, and a country commission, 117. 
 TRADER, 
 
 definition of, 27.
 
 INDEX. P91 
 
 TRADING, 
 
 1. What sufficient. 
 bankers, 22. 
 arniy-agent, ib. 
 brokers, ib. 
 scriveners, 23. 
 
 when an attorney considered a scrivener, ih, 
 underwriters, 25." 
 warehousemen, ib. 
 wharfingers, ib. 
 packers, ib. 
 builders, ib. 
 earpenters, Uf. 
 shipwrights, ib. 
 victuallers, ib. 
 
 keepers of inns, taverns, &c., ib, 
 dyers, 26. 
 printers, ib. 
 bleachers, ib. 
 fullers, ib. 
 calenderers, ib. 
 cattle and sheep salesmen, ih. 
 factors and agents, ib. 
 bnying and letting for hire, ih. 
 
 job-masters, 27. 
 
 livery-stable keepers, ib. 
 
 hackney-men, ib. 
 
 furniture brokers, ih. 
 
 ship-owners, ib. 
 workmanship of goods or commodities, ib, 
 
 shoemakers, ib. 
 
 smiths, ib. 
 
 clothiers, ib. 
 
 tanners, ib. ^ 
 
 bakers, ih. 
 
 brewers, ib. 
 
 plumbers, ib. 
 
 nailors, ib. 
 
 butchers, ib. 
 general dealers, ib. 
 
 definition of a trader, ib. 
 
 smuggler considered one, 28. 
 
 a single act not sufficient, ib. 
 
 depends not so much upon quantity as intention, 29. 
 
 profit not an absolute ingredient, ib. 
 
 intention to trade generally a question for a jury, ib. 
 
 publisher of a newspaper, ib. 
 
 drawing and re-drawing bills of exchange, ib. 
 
 fisherman, "] 
 
 brickmaker, I 
 
 owner of a colliery, j 
 
 occupier of lands or mines, ^ when considered traders, 30. 
 
 manufacturers of alum, 
 
 limeburners, 
 
 workers of stone-quarries, 
 
 partners with traders, 31.
 
 992 INDEX. 
 
 TRADING — continued. 
 What sufficient. 
 
 executor carrying on trade of his testator, 31. 
 as to partial discontinuance of tradino-, ib. 
 
 pawnbroker merely desisting to "take in pledges, ib. 
 or manufacturer to manufacture, ib. 
 
 « i,n T^"^''^ partnership concern not wound up, and stock undisposed of, 32. 
 2. Wfiat not sufficient, ib. 
 special exemptions, ib. 
 
 1 . farmers, ib. 
 
 when not exempt, ib. 
 
 2. graziers, 34. 
 
 drovers not exempt, ib. 
 aliter, cow-keepers, ib. 
 
 3. common labourers, or workmen for hire, ib. 
 
 4. receiver-general of the taxes, ib. 
 
 5. members of incorporated companies, 35. 
 other persons held to be exempt, ib. 
 
 colonel of a fencible regiment, ib. 
 schoolmaster, ib. 
 owner of a mine, ib. 
 contractor for victualling the fleet, ib. 
 public officers, ib. 
 king's butler or steward, ib. 
 butlers or stewards of inns of court, ib. 
 sutlers in the army, ib. 
 
 commissioners of the excise, 56. ' 
 
 farmers of the customs, ib. 
 
 persons selling merely the produce of their land, ib. 
 worker of mines, ib. 
 cider grower, ib. 
 market gardener, ib. 
 worker of stone quarry, ib. 
 lime-burners, ib. 
 lessee of alum works, ib. 
 fishermen, when exempt, 37. 
 buying and selling land, ib. 
 
 bank stock and government securities, ib. 
 but stock-broker not exempt, 38. 
 drawing and redrawing bills of exchange, when not a tradincr ib 
 executor of a trader, when exempt, ib. *" 
 
 as to trading with a fraudulent object, ib. 
 3. Place where the Trade must be carried on, 59. 
 
 acts of buying and selling need not both be in England, ib. 
 mr^ . l\".^,*''^^^'"^' should be described in commission, lis. 
 TRANSFER VOLUNTARY, 
 when fraudulent, 439. et seq. 
 when an act of bankruptcy, 75. 
 TRANSITUS. See " Stoppase in Transitu:'' 
 TRAVELLING EXPENS^Esf 
 
 commissioners not entitled to, 146. 
 npr assignees, 325. 
 TRESPASS ; and see " Actions," 2. 
 
 fraudulent conveyance of bankrupt not alone a sufficient defence by as- 
 signees, 741. •' 
 
 will not lie by assignees against the sheriff before assignment, 746.
 
 INDEX. 993 
 
 TRIAL AT LAW, 824.; and see " Practice on Petition to supersede." 
 TRu /ER ; and see " Actions," 2. « Sheriff." 
 
 when assignees may bring either trover or assumpsit, 732. 
 when necessary to prove demand and refusal, 735. 
 nonjoinder in can only be pleaded in abatement, 74,5. 
 TRUSTEE ; and see " Executor." 
 
 bound to produce trust deed before commissioners, 1 54. 
 mode of proof by, 195. 
 
 cestui que trust should join, 224. 
 when bankrupt, stock may be transferred to a new trustee, 222. 
 cannot prove against his own estate without an order, ib. 
 nor in any way where he has committed a breach of trust, 223. 
 but in that case a legatee or a creditor may prove, ib. 
 where one trustee lends the trust money to another, and both become 
 
 bankrupt, amount may be proved under each commission, 224. 653. 
 dividends upon proof generally ordered to be paid into the Bank, i6. 
 
 except where cestui que trust of age, ib. 
 one trustee cannot sign a bankrupt's certificate for himself and his co- 
 trustees, ^66. 
 as to his right of set-oiF, 712. ; and see " Set-off," 4. 
 TRUST DEED, 68. ; and see " Act of Bankruptcy," 2. " Composition." 
 TRUST PROPERTY, 
 
 not aiFected by bankruptcy, 222. 435. 
 but when not distinguishable, proof must be made, 222. 
 receiver of can only be appointed by bill, 224. 
 
 where bankrupt a trustee. Lord Chancellor may order property to be con- 
 veyed to other trustees, 436. 
 cases where trust property does not pass, ib. 
 
 repayment of money by bankrupt clothed with a trust a bond fide pay- 
 ment, 678. 
 
 U 
 
 UNCERTIFICATED BANKRUFl', 
 
 may be a petitioning creditor, 9 1 . 
 
 commission against, 126.; and see " Commission" 3. 
 
 may acquire property, 551. ; and see "Bankrupt." 
 UNCLAIMED DIVIDENDS, 503. ; and see " Dividends," 3. 
 UNDER MARSHAL, 
 
 office of assignable, 559. 
 UNDERWRITER, 
 
 a trader, 25. 
 
 as to his right of set-off, 716, 717.; and see " Set-off." 
 USURY ; and see « Illegal Debts." 
 
 debts tainted with not proveable under a commission, 302. 
 
 contract originally usurious void ab initio, ib. 
 
 except a bill or note in hands of an innocent indorsee, ib. 
 
 or where by custom of trade a reasonable commission taken, 303. 
 
 where, on a loan of money, the whole is not advanced on the day from 
 which interest is agreed to be paid, 304. 
 
 how bankruptcy differs from other proceedings in charging usury, ib. 
 
 V 
 VARIANCE, 
 
 effect of in name of bankrupt, in striking docket, 108. 
 in description of bankrupt in commission, vrhen material, lis. 
 
 3 s
 
 994 INDEX. 
 
 VARIANCE — continued. 
 
 what fatal in the averment in a declaration of the issuing of the com- 
 mission, 137. 
 what in the description of the assignees, 732. 
 VENDITIONI EXPONAS; and see" Extent." 
 
 operation of, 491. 
 VENDOR, 
 
 has a lien upon an estate for the purchase-money, 209, 487. 
 
 may apply for a sale and prove for the deficiency, ib. 
 
 of standing timber, though part felled, has a lien on the remainder, ib. 
 
 of timber already felled and part delivered, qxicere as to lien, ib. 488. 
 vendor's lien not discharged by taking bills of exchange, except when, ib. 
 not discharged though receipt for purchase-money indorsed upon the 
 deed, ib. 
 
 unless he relies on the personal security of the purchaser, ib. 
 of a house and furniture has a lien where possession not delivered, ib. 
 of goods has only a lien on them before delivery to vendee, 489. 
 VENDOR AND PURCHASER; and see "Reputed Owner, 2." " Stop- 
 jiagein Transitu." 
 
 contract of sale maybe rescinded by countermand before goods are de- 
 livered, 471. 
 
 though countermand not received until after actual delivery, ib. 
 return of goods by vendee to vendor must be instanter to bind assgnees 
 of vendee, 472. ; and see "Assignment" 8. 
 VERDICT, 
 
 in tort, if judgment not before bankruptcy, insufficient debt to support a 
 commission, 96. 
 
 or to be received in proof, 197. 
 only prima facie evidence of a debt, ib. 
 VICE-CHANCELLOR, 
 
 his jurisdiction in bankruptcy, 14. 
 
 power to supersede a commission, 14. 829. 
 
 may hear a petition for a procerlendo, 14. 
 
 and certify the propriety of awarding it, ib. 
 appeal from his order must be signed by a barrister, ib. 
 VICTUALLER 
 
 a trader, 25. 
 VOLUNTARY BOND, 
 
 may be proved with a view to the surplus, 306. 
 VOLUNTARY CONVEYANCE, 
 
 by bankrupt (being at the time insolvent) void, 565. 
 settlement on wife after marriage void, ib. 
 by executor to cestui que trusts, when good, 3G6. 
 made by a party not indebted at the time, good, ib. 
 to secure the debt of another person not fraudulent, ib. 
 good for all piu-poses except as against the creditors of a bankrupt, ib. 
 VOLUNTARY PREFERENCE. See " Assignment," 6. 
 
 W 
 
 WAGER, 
 
 when a party may recover back the money he has paid, 308. 
 
 what loss by renders certificate void, 593. 
 WAIVER OF LIEN, 873. See « Uen." 
 WAREHOUSEMAN 
 
 a trader, 25.
 
 INDEX. 995 
 
 WARRANT, 
 
 of seizure, 142. 152.; and see " Messenger.'* " Commissioners." 
 authority of commissioners to issue, 153. 155.; and see " Commissioners." 
 for excise duties, when illegal, 495. ; and see " Excise." 
 WARRANT OF ATTORNEY, 
 
 when a good petitioning creditor's debt, 91. 
 WARRANT OF COMMITMENT, 150. ; and see « Commitment." " Bank- 
 rupt" 4. 
 
 how far evidence of imprisonment in actions against commissioners, 167. 
 demand and refusal of, 171. 
 where there should be a supplemental one, 528. 
 WASTE, 
 
 Lord Chancellor may restrain assignees from committing, 18. 
 WE.\RING APPAREL, 
 
 assignees not entitled to detain any part from bankrupt, 384. 
 WHARFINGER; and see " Stoppage in Transitu." 
 a trader, 25. 
 has a general lien, 483. 
 
 unless his dealing is inconsistent with any right to retain, ib. 
 WIFE, 
 
 when debt due to dum sola, who must be petitioning creditor, 99. 
 when husband and wife petitioning creditors, how bond should be exe- 
 cuted, 111. 
 debt due to, or from, dum sola, cannot be set off by or against the husband, 
 
 715. 
 but a legacy to a feme covert may be set off against the husband, 714. 
 WIFE OF BANIvRUPT ; and see " Marriage Settlement." 
 denial by how proved, 58. 
 
 cannot be a witness to support commission, 139. 796.; and see " Evi- 
 dence" 6. 
 to what she may be examined before commissioners, 158. 
 How Assignment operates on her real Estate, 370. 
 assignees have the same interest as the bankrupt had, ib. 
 if bankrupt seised in her right assignees entitled during coverture, ib. 
 her dower not affected by assignment, ib. 
 
 nor barred by an uncertain provision in lieu of dower, ib. 
 nor by a settlement made by bankrupt before he was seised in 
 possession, ib, 
 where lands devised for her separate use, not subject to husband's 
 
 bankruptcy, 371. 
 where bankrupt in equity a trustee for wife, assignees will be so, ib. 
 equity will supply legal defects in settlement for the benefit of wife, ib. 
 settlement before marriage of vAfe' s property for her benefit in case her 
 
 husband failed, held good, 372. 
 but covenant that husband would, in case of her death, transfer a sum to 
 her next of kin, assignees held subject to no equity for the payment, ib. 
 in all cases entitled to proper maintenance out of her own property, ib. 
 but this a personal right of wife, and not extended to the children 
 374. 
 whether equity will assist her, when assignees can get legal possession of 
 
 her property, ib. 
 settlement before marriage good against assignees, 375. 
 so after marriage, if upon payment of money to husband as a portion, ib. 
 so a settlement by one not a trader and not indebted, ib. 
 where a covenant in deed of separation good against creditors, 376. 
 
 5 3 2
 
 996 INDEX. 
 
 WIFE OF BANKRUPT —contimicd. 
 
 How Assignment operates on her personal Estate. 
 
 a chose in action of wife dum sola passes to the assignees, 376. 
 so stock in the public funds, ib. 
 and mortgages, ib. 
 
 whether chose in action of wife's, not reduced into possession by 
 the assignees, survives to her in case the bankrupt dies, 377. 
 when money bequeathed to wife for her sole and separate use, it does not 
 pass to the assignees, ib. 
 
 nor where there is a similar limitation of it in a settlement, 378. 
 nor where a will directs her receipt to be a sufficient discharge, 311. 
 or a bequest tvhniever she shall demand or require the same, ib. 
 
 or in trust to pay the annual produce into her proper hands, ib. 
 but if a clear ititcntion not manifest that the bequest is for her sepa- 
 rate use, assignees then entitled, 578. 
 a divorce does not entitle the wife to the whole of a fund previously 
 
 bequeathed, 379. 
 property of when sole trader in London does not pass to assignees, ib. 
 nor where wife before marriage conveyed all her stock to trustees to 
 
 enable her to carry on her business separately, ib. 
 but where the goods were left in possession of husband till the day 
 
 before his bankruptcy, assignees entitled, ib. 
 dividends receivable by bankrupt for life belong to assignees, 580. 
 but not proceeds of stock agreed by bankrupt before marriage to be 
 settled on his wife, ib. 
 WITNESS ; and see " Exanwiation." " Evidence." 
 must attend in person to prove the trading, 139. 
 
 except when, ib. 
 when objection to competency should be taken, ib. 
 as to protection of when attending the commissioners, 145. 
 alleging himself to be a creditor no excuse for refusing to attend 154. 
 nor justified because he has before attended for a similar pur- 
 pose, ib. 
 attending commissioners privileged from arrest, 160. 
 when arrest of amounts to a contempt, ib. 
 as to his application for discharge when so arrested, 161. 
 costs of the application, ib. 
 when necessary expenses must be previously tendered to, 161. 848. 
 where an old witness may refer to his deposition, 790. 
 WORKMANSHIP OF GOODS, 
 
 when a trading, 27. 
 WORKMEN FOR HIRE, 
 
 exempt from bankruptcy, 34.
 
 997 
 
 ADDENDA. 
 
 i AGE 13. Add to Note (2) — " or to order the messenger Jurisdic- 
 (who had possessed himself of property of a bankrupt under *^^°"- 
 a commission which was superseded) to account for the 
 same to assignees under a subsequent subsisting com- 
 mission. Ex parte ShaWi 2 G. & J. 73." 
 
 Ibid. Note (4) — " Where, however, a petition by an 
 assignee under a second commission prayed, that the peti- 
 tioning creditor under a prior commission (who had re- 
 ceived a sum of money from the bankrupt, on condition 
 of not proceeding with such commission, and had accord- 
 ingly abandoned it,) might refund the money so received, 
 the Vice-Chancellor dismissed the petition with costs, on 
 the ground that the Court had not jurisdiction. Ex parte 
 Marshall, 2 G. & J. 53." 
 
 Page 17. Note (1) — " But upon a similar application, 
 where the acceptor had accepted the bills for the accom- 
 modation of the drawer. Lord Eldon decided, that he had 
 in this case jurisdiction to entertain the application ; and 
 that the relief, which the drawer was entitled to, was not 
 to be defeated by his joining the acceptor in the ap- 
 plication. Ex parte Hippins, 2 G. & J. 93." 
 
 Page 56. Add to Note (5) — " or a denial to o?ie person Denial, 
 calling to make inquiries about a dishonoured bill of ex- 
 change, whom the bankrupt considered a creditor. Bleasby 
 V. Crossleij, 2 Carring. & P. 213." 
 
 Page 92. Note (7) — " And it has lately been held by Petition- 
 the Vice-Chancellor, that a creditor, whose debt had been i"g ^^edi- 
 
 3s 3 '''''^'^''
 
 998 
 
 ADDENDA. 
 
 Petition- 
 ing credi- 
 tor's debt. 
 
 Statute of 
 limit- 
 ations. 
 
 Docket. 
 
 Affidavit. 
 
 Amend- 
 ment. 
 
 Joint com- 
 mission. 
 
 Country 
 commis- 
 sion. 
 
 omitted in the schedule filed by the insolvent, mij^ht main- 
 tain a commission founded on that debt. Ex parte Shuttle- 
 nxjorth, 2 G. & J. 68." 
 
 Page 94'. Add to Section I. — " But the creditor, who 
 makes the application, must first go before the commis- 
 sioners, to have the debt of the petitioning creditor ex- 
 punged. Ex parte Chappell, 2 G. & J. 131." 
 
 Page 99. Note (2) — " It appeared, however, upon the 
 last argument of this case, that the different writs (relied 
 on to save the statute of limitations) had not been returned 
 and filed, nor the continuances entered on the roll, until 
 after the issuing of the commission. 5 B. & C. 341." 
 
 Page 108. Note (6) — " But this is not the case, where 
 an order has been obtained to amend the commission upon 
 bringing in new docket papers, notwithstanding they are 
 not brought in before the application for the second docket. 
 Ex parte Harman, 2 G. & J. 25." 
 
 Page 109. Note (6) — " It is, also, no objection to the 
 affidavit, that it is sworn before the solicitor suing out the 
 commission. Re Sir William Elford, 2 G. & J. 65. ; Re 
 Whittle, ib. note (a). 
 
 Page 120. Note (2) — "But in a recent case, where 
 the name of one of the commissioners was spelt wrong, 
 Lord Eldon permitted the mistake to be amended, though 
 the commission had been opened, and the bankruptcy de- 
 clared ; but he ordered the other commissioners to proceed 
 to a new adjudication. Re Barber, 2 G. & J. 8 ! ." 
 
 Page 133. Add to Section 4. — " And when a separate 
 commission is issued against one partner after a joint com- 
 mission against the other partners, the commissioners must 
 proceed under the several commissions as they are brought 
 before them ; since it is impossible for them to know before- 
 hand which, in the result, will be available. Ex parte 
 Price, 2G. &J. 161." 
 
 Page 147. Note (7) — "And Lord Eldon lately said, 
 he would make an order, that no attorney should in future 
 sue out a country commission, without certifying that no
 
 ADDENDA. 999 
 
 clerk of his was inserted as one of the commissioners. Ex 
 parte Boimie, Sittings after Trinity Term, 1826." 
 
 Page I?*. Note (1) — " But the assignees are not 
 answerable to the messenger for costs due before the choice 
 of assignees. Burwood v. Felton^ 3 B. & C. 43." 
 
 Page 329. Note (3) —Add the like. 
 
 Page 177. Note (2) — " But the statute of limitations Statute of 
 
 does not run against a creditor after the issuing of the \'^^*" 
 ^ * ations. 
 
 commission. Ex parte Ross, 2 G. & J. 46." 
 
 Page 180. Note (1) — "In one case, where the obligor Proof. 
 of a bond (pledged with the creditor) had left the 
 country, and the eventual payment of it was very un- 
 certain, the Vice- Chancellor ordered that the creditor 
 might prove his whole debt, and take such proceedings as 
 he might be advised to compel payment of the bond, ac- 
 counting to the assignees for any surplus recovered on the 
 bond, if with the dividends received under the commission 
 it should exceed the amount of the debt. Ex parte Smith, 
 2G.&J. 106." 
 
 Page 204. Add to Note (1) — "Hockley v. Bantock, 
 1 Russ. 141." 
 
 Page 207. Note (4) — " But where an equitable mort- Equitable 
 gagee advanced a further sum, and took a warrant of ™°"S3ge. 
 attorney to secure that sum — and the bankrupt afterwards 
 executed to him a conveyance in trust to sell — and after 
 payment of the first sum advanced, to pay the surplus to 
 the bankrupt — and on the day of the date of the convey- 
 ance judgment was entered up, and execution levied under 
 the warrant of attorney for the last sum, part of which 
 was satisfied by the levy ; — it was held, that the mortgagee 
 was not entided to tack the residue of the judgment debt 
 to the mortgage. Ex parte Pettit, 2 G. & J. 47." 
 
 Page 222. Add to Note (3) — "Ex parte Saunders, 
 2G.&J. 132." 
 
 Page 233. Add to last sentence — " And though the Appren- 
 execution of the indentures has not taken place from mere *"^^^* 
 inattention, yet if the agreement for the apprenticeship is 
 
 3 s 4
 
 1000 
 
 ADDENDA. 
 
 Promis- 
 sory note. 
 
 Interest. 
 
 Assignees. 
 
 concluded, and the apprentice is actually serving under the 
 concluded agreement, the father will be entitled to a return 
 of part of the premium. Ex parte Haynes, 2G. & J. 122." 
 
 Page 242. Note (2) — " Upon the same principle, a 
 promissory note payable with interest twelve months after 
 notice is proveable, though the maker becomes bankrupt 
 before any notice is given. Clayton v. Gosling, 5 B. & C. 
 360. Ex parte Elgar, 2 G. & J. 2. contra. Ex parte 
 Doummani 2 G. & J. 85." 
 
 Page 259. Note (2) — " And where part of the account 
 between two bankrupt houses consisted of bills that might 
 be proved against both estates. Lord Eldon held, that 
 there could be no proof in respect of those bills as between 
 the two houses, unless there was a surplus after satisfying 
 the holders of the bills. Ex parte Rwuoson, Ex parte Lloyd, 
 
 1 Jacob, 274." 
 
 Page 272. Note (1) — " The interest is in such case to 
 be calculated on the whole debt up to the first dividend; 
 then upon the principal money unpaid, after deducting the 
 amount of the dividend up to the second dividend, and so 
 on. Re Higginhottom, 2 G. & J. 123-" 
 
 Page 278. At end of first paragraph add Note — 
 " Holding \. Impey, 1 Bing. 189. 7 Moore, 614." 
 
 Page 295. Add to Note (2) — " Ex parte Houston, 
 
 2 G. & J. 36." 
 
 Page 326. Note (4) — " Thus, where B. (one of two 
 assignees) signed the cheques for the dividends, and 
 delivered them to S., his co-assignee, who undertook to 
 distribute them to the creditors, and the money was frau- 
 dulently received on some of them by a clerk of S., and S. 
 became a bankrupt before the actual demand of the divi- 
 dends, — it was held, that B. was not liable for this loss; as 
 the credit of S. was not impeached at the time of the deli- 
 very of the cheques to him, and as such delivery was in 
 the proper execution of B.'s duty as one of the assignees. 
 Ex parte Griffiji, 2 G. & J. 114." 
 
 Page 327. Add to first paragraph — " And the Court 
 13
 
 ADDENDA. 1001 
 
 will not review the allowance by the commissioners of the 
 accounts of the assignees, except in matter of principle. Ex 
 parte Anthony, 2 G. & J. B5." 
 
 Page 344. Note (S) — " But where the bankrupt shows 
 that there will be a clear surplus of his estate, this does not 
 seem to be necessary. Ex parte Archer., 2 G. & J. 1 10." 
 
 Pages 345. 732. Note (3) — " But where assignees are 
 removed by order of the Lord Chancellor, the new as- 
 signee may sue in his own name, without stating in the 
 declaration either the fact of their removal, or his own ap- 
 pointment, notwithstanding the cause of action accrued in 
 the time of the former assignees. Alldritt v. Kiitridge, 
 8 Moore, 372." 
 
 Page 354. Add to Section I. — " Where the bankrupt Real 
 wilfully retained possession of a cottage and land, which estate. 
 had passed to the assignees by the bargain and sale, the 
 Vice- Chancellor made an order upon him to deliver up 
 possession within fourteen days after personal service of 
 the order. Ex parte Hargraves, 2 G. & J. 59." 
 
 Page 371. Note (1) — " Where an attendant term be- Dower, 
 came vested in the wife of the bankrupt (who was the 
 owner of the inheritance) as the administratrix of the trus- 
 tee, after which the bankrupt died, — it was held, that the 
 wife was not entitled to dower, and that she was bound to 
 assign the term to a purchaser, to whom the assignees had 
 sold the estate ; for, as she would not have a right to dower 
 if the term were vested in another person, the mere circum- 
 stance of its being vested in her will not give her that 
 right. Mole v. Smith, 1 Jacob, 490." 
 
 Page 391. Note (2) — "And where a lessee under a Lease, 
 lease (containing a covenant not to assign) conveyed all 
 his estate and effects to trustees for the benefit of his 
 creditors, it was held, that, as this conveyance was void 
 under the bankrupt law, it did not amount to a forfeiture of 
 the lease. Doe v. Powell, 5 B. & C. 308." 
 
 Page 397. Note (5) — " The Court has no power upon 
 such an application to make the assignees pay the costs, or
 
 1002 
 
 ADDENDA. 
 
 Lien of 
 vendor. 
 
 to give the lessor the costs of the application out of the 
 bankrupt's estate. Ex parte Bright, 2 G. & J. 79." 
 
 Page 444'. Note (2) — The author has been given to 
 understand, that the report of this case is somewhat inac- 
 curate, and that the learned Chief Justice did not go to the 
 extent of saying, that the belief of the mere probability of 
 bankruptcy would invalidate a payment made by the bank- 
 rupt, as being a payment in contemplation of bankruptcy. 
 Delivery Page 474. Note (2) — "A delivery order for wine lying 
 
 of goods, jn ti^g London Docks, given by the vendor to the vendee, 
 without any thing else being done, is not a sufficient ac- 
 ceptance of the wine to take the case out of the statute 
 of frauds. Bentall v. Burn, 1 Ry. & M. 107." 
 
 Page 478. Add to Note (1) — " Wallace v. Woodgnfe, 
 iRy. &M. 193." 
 
 Page 489. Note (3) — " But where a vendee (under a 
 contract to pay for goods on delivery) obtained possession 
 of them by giving a cheque, which he had no reasonable 
 ground to expect would be paid, and then became bankrupt, 
 it was held that his assignees gained no property in the 
 goods. Hawse v. Crowe, 1 Ry. & M. 414." 
 Bankrupt. Page 536. A bankrupt cannot apply to be discharged 
 under the Lords' Act before he passes his last examination ; 
 and then he must insert in his schedule an assignment to 
 the plaintiff of all his estate, &c. subject to the commission 
 and the payment or satisfaction of his debts under it. 
 Nunney v. Hall, 8 Moore, 423." 
 
 Page 555. Note (1) — " Where one of a bankrupt's 
 assignees had received money as a trustee under a trust 
 deed, prior to the commission, which he had not accounted 
 for — and the bankrupt showed that there would be a 
 clear surplus of his effects, — he was allowed (on petition) 
 to sue that assignee in the name of the other assignee ; 
 and the former was restrained from setting up his cha- 
 racter of assignee, to defeat the action. Ex parte Archer, 
 2G.&J. 110."
 
 ADDENDA. 1003 
 
 Page 607. Note (1 ) add — " Shallcross v. Dysart, 2 G. 
 &J. 87." 
 
 Page 613. After last paragraph add — •' But a certi- Certifi- 
 ficate under a commission, which issued before the 1st 
 Sept. 1825, (when the new act began to take effect,) need 
 not be registered, though the certificate itself was not ob- 
 tained until after that day. Tattle v. Greenwood, 3 Bing. 
 493." 
 
 Page 639. Note (I) — " But a retiring partner is still Partners, 
 liable to a creditor of the old firm, though the creditor 
 assent to the transfer of his debt to his credit by the new 
 firm. David v. Ellice, 5 B. & C. 196." 
 
 Ibid. Note (2) — " Nor where the retiring partner 
 agrees, that certain articles of the stock shall become the 
 exclusive property of the other partner, and that a certain 
 fund shall be appropriated to the payment of the debt, 
 which afterwards proves deficient, has he any lien on such 
 articles for the deficiency. Lingen v. Simpson, 4 Sim. 
 & St. 600." 
 
 Page 658. Note (1) — " If, however, a joint creditor has 
 a separate security from one of his co-debtors, he may 
 prove his debt against the joint estate, without the sur- 
 render or sale of his security. Ex parte Peacock, 2 G. & 
 J. 27. Ex parte Roding, ibid." 
 
 Page 672. Note (3) — " And see Ex parte Castell, 2 G. 
 & J. 124. Ex parte Stroud, ibid. 127." 
 
 Page 677. Note (3) — " But where a trader gave to her Payments, 
 creditor an order on the executor of her debtor, to pay the 
 debt to the creditor — and the executor (having received 
 the order) retained it until the assets of the testator should 
 enable him to pay simple contract debts — and the trader 
 became bankrupt before payment, — the creditor was de- 
 clared entitled to receive the amount of the order from the 
 executor, notwithstanding a subsequent arrest of the trader. 
 Ex parte Smith, 2 Swanst. 392." 
 
 Page 693. After the second paragraph, add — " The Execu- 
 Court of King's Bench refused to set aside an execution *^°"*'
 
 1004« 
 
 ADDENDA. 
 
 Set-off. 
 
 Sheriff. 
 
 Evidence. 
 
 issued upon a judgment of nil dicit under a warrant of at- 
 torney, and served and levied by seizure upon the property 
 of a bankrupt before his bankruptcy, — holding, that the 
 statute 6 0.4. c. 16. s. 108. did not render the execution 
 in such case void, but merely declared that he should not 
 avail himself of it to the prejudice of other fair creditors. 
 And Mr. Justice Holroyd said, he entertained considerable 
 doubt, whether the question upon this enactment could be 
 determined in a court of law. Taylor v. Taylor, 5 B. & 
 C. 392." 
 
 But where an indenture (which was in legal effect a 
 cognovit actionem within the meaning of the 3 G. 4. c. 39.) 
 had not been filed with the proper officer within twenty- 
 one days after its execution, pursuant to the requisitions 
 of that statute, and judgment was not entered up until 
 after the expiration of the twenty-one days ; it was ordered, 
 on an application by the assignees of the party against 
 whom judgment had been so entered up, that an execution 
 issued on such judgment should be withdrawn. Hurst v. 
 Jennings, 5B.&C.650." 
 
 Pages 724. 861. Note (3) — " The costs of a judgment 
 as in case of a nonsuit, entered up against the plaintiff 
 after he has become bankrupt, cannot be set off against the 
 costs of an action by the assignees against the defendant in 
 the former action. West v. Pryce, 2 Bing. 455." 
 
 Page 750. Note (1) — " Where the sheriff, having paid 
 over the proceeds of goods taken under ^Ji. fa. against a 
 bankrupt, was sued in trover by the assignees, and gave 
 notice to the creditor to defend the action — and (upon his 
 refusal) let judgment go by default, and paid over the 
 value of the goods to the assignees ; — it was held, that the 
 sheriff was not bound to defend the action, but might 
 recover against the creditor the money paid to him, upon 
 proving the validity of the bankruptcy. Austen v. Ward, 
 iRy. &M. 116." 
 
 Page 779. Add to Note (3) — " And so, where the de- 
 position omits to state, that the party absented himself
 
 ADDENDA. 1005 
 
 with an intent to delay iiis creditors. Toleman v. Jones, 
 9 Moore, 24." 
 
 Page 787. After first paragraph add, — " Parol evi- 
 dence is admissible to prove matters deposed by a party on 
 his examination before the commissioners, if material to 
 the inquiry, tliough they are not contained in the written 
 examination. Roidand v. Ashlji/, 1 Ry. & M. 2S1." 
 
 Page 806. Note (4) — " But the Court will not suspend Superse- 
 the advertisement, unless upon the proceedings there ap- ^^^' 
 pears a clear defect in the requisites to support the com- 
 mission. Ex parte Ainswort/i, 2 G. & J. 89." 
 
 Page 816. Note (5) — " And in another case the Vice- 
 Chancellor, upon a petition presented by the bankrupt 
 within the forty-two days, superseded the commission with- 
 out a previous surrender of the bankrupt, on the ground of 
 the insufficiency of the petitioning creditor's debt, — saying, 
 that the bankrupt was not bound to surrender before the 
 last public meeting. Ex parte Ntcholls, 2 G. & J. 101." 
 
 Page 813. Note (4) — "And where all the commis- 
 sioners but one were dead, and one of the creditors was also 
 dead intestate, without being administered to, but whose 
 son was ready to consent. Lord Eldon allowed the surviving 
 commissioner to certify the consent of the creditors, and the 
 son of the deceased creditor to sign a consent to the superse- 
 deas. / Ex parte Wallis, 2 G. & J. 25. In one case, also, 
 where the bankrupt was abroad, and had avowed his in- 
 tention of not returning to England, Lord Eldon dispensed 
 with the bankrupt's previous surrender, and allowed his 
 solicitors to sign the petition for the supersedeas. Ex parte 
 Calling, 2 G. & J. 35." 
 
 Page 818. Note (7) add — " Nor if he be described as 
 he described himself in carrying on his trade, and ac- 
 cording to the popular description of his residence, not- 
 withstanding it is not the strict legal description. Ex parte 
 Wride, 2 G. & J. 99." 
 
 Page 832. Note (4) — " And the Lord Chancellor also 
 retains his power over the proceedings under the commis-
 
 1006 
 
 ADDENDA. 
 
 sion ; which he sometimes orders to be deposited in the 
 Bankrupt Office for the purpose of safe custody. Ex parte 
 Shaw, 1 Jac. 270." 
 Petition. Page 839. Note (5) — " And in a subsequent case His 
 
 Honour still retained the same opinion. Ex parte Dumbell, 
 2 G. &J. 121." 
 
 Page 840. Note (6) — " When a petition is permitted to 
 stand over, it is upon condition of the petitioner paying the 
 costs of the day. It is not necessary, that the order for these 
 costs should be drawn up, but there must be an affidavit of 
 the demand having been made of them, before the non- 
 payment of them can be urged as a preliminary objection to 
 the subsequent hearing of the petition. Ex parte Leech, 
 2G.&J. 78." 
 Af&davit. Page 84'2. Note (11) — " It is no objection to an affi- 
 davit, that it was not entitled in the matter of the bank- 
 ruptcy, if from the accompanying circumstances it is 
 manifest, that it was judicially used in the bankruptcy. 
 Ex parte Simonds, 2 G. & J. 44.." 
 Costs. Page 846. Note (3) — " So, where the bill had been 
 
 taxed at 97/. lOs., and the commissioners had excluded the 
 parties from attending the taxation. Ex parte Palmer, 
 2 G. & J. 34." 
 
 Page 847. Add to first paragraph of Section 2. — " And 
 the commissioners ought to tax such costs from time to 
 time as they occur, and not wait until the whole business 
 of the commission is concluded. Ex parte Gore, 2 G. & 
 J. 117." 
 
 Page 848. End of first sentence refer as an authority 
 to — "Ex parte Letiihwaite, 16 Ves. 424." 
 
 Page 867. Note (2) — " But though there is no suit 
 pending, an attorney cannot take a mortgage from his client 
 for secunngjuture costs. Jones v. Tripp, 1 Jacob, 323." 
 
 Page 868. Note (4) add— " 1 Jacob, 270. S. C." 
 Solicitor. Page 869. Note (5) — " So, the solicitor of a purchaser 
 of an estate from the bankrupt is bound to attend the 
 commissioners, for the purpose of being examined, but
 
 ^ADDENDA. 1007 
 
 without prejudice to any question of privilege. Ex parte 
 Hodgson, 2G.& J. 21." 
 
 Page 871. Note (4) add — *' Ex parte Burwood, 2 G. 
 & J. 70." 
 
 Ibid. Note (5) — " A clerk to a solicitor, com- 
 mencing practice for himself, is not to be restrained from 
 acting as solicitor for parties against whom his master was 
 employed, upon general allegations of his having, in his 
 former service, acquired information likely to be pre- 
 judicial to the clients of his master. Bricheno v. Thorp, 
 1 Jacob, 300." 
 
 Page 878. Note (8) — " Where a commission was super- 
 seded by an arrangement between the bankrupt and his 
 creditors, and the bankrupt pays the solicitor's bill without 
 taxation, the Court will afterwards order it to be taxed. 
 Ex parte Heyden, 2 G. & J. 52." 
 
 Page 881. Note (7) — " Neither can it be made one of 
 the terms of the compromise of a suit, that the solicitor's 
 bill shall be paid without taxation. Balme v. Paver, 
 1 Jacob, 307." 
 
 END OF THE FIRST VOLUME. 
 
 Printed by A. Strahan, Law-Printer to His Majesty, 
 Printers- Street, London.
 
 ERRATA. 
 
 In marginal abstract, for " necessary" read " suflScient." 
 
 Note (4), for " Roke, 168." read " Peake, 168." 
 
 Note (1) line 3., for " 118." read « 150." 
 
 Note (3), for " 77." read " 79." 
 
 Line 1., for " 380." read « 439." 
 
 Note (1), for " Picklock v. Lyster, 2 M. & S." read " Pickstock v. 
 Lyster, 3M. &S." 
 425. Note (1), for « Doug. 303." read " Doug. 317." 
 441. Note (5), for " 5 Mod." read " 5 Mad." 
 489. Line 8. from bottom, for " Ch. 22." read " Ch. 23." 
 557. Note (5), for « 89." read " 59." 
 586. Line 10., for " commission" read " certificate." 
 608. Marginal abstract at bottom, dele " discharged." 
 663. Note (1), for " 566." read " 656." 
 677. Note (3), for " 128" read " 123." 
 783. Note (3), for " Walker v. Barnell, Doug. 303." read " Walker v. 
 
 Burnell, Doug. 317." 
 790. Note (3), for « Boden v. Dallow, 1 Atk. 280. ante, 728." read " Boden 
 
 V. Dellow, 1 Atk. 289. ante, 729." 
 872. Note (i;, last line, for " 285." read " 429." 
 
 ^
 
 SCHOOL OF LAW LIBRARY 
 
 UNIVERSITY OF CAt.t -.rnta