CHAPTER Accommodation modation bills be first tried by this principle. Read accepts, for the accommodation of the bankrupt, bills to the amount of 6,4447., which remains wholly unpaid at the time of the bankruptcy. These bills are all proved by the holders, under the commission, and, if Read were now to pay these bills, it would form no ground of further proof, and all that Read could claim would be, to have the benefit of the proofs already made upon these bills against the estate. With respect to the cash balance, that part of it which is represented by the promissory note of 1,6037. is already proved against the estate by the holder of the note, with whom the petitioner had discounted it and the actual payment by the petitioner could not give him a larger right than to have the benefit of that proof. The remainder of the cash balance is more than covered by the two bills of Stalker, which have been proved against the bankrupt's estate by the holders with whom the petitioner negotiated them. It is hardly necessary to refer to the debts, amounting to 7737., which were guaranteed by the petitioner, but which have been proved by the creditors against the bankrupt's estate." Petition dismissed (g). The latest case upon this intricate subject is Ex parte La Foreste (h), in which there was a cash balance between two bankrupt houses, and an account of mutual accommodation bills dishonoured. And the cash balance alone was admitted to be proved. And it was said, that Lord Eldon's dissatisfaction to Ex parte Walker applied only in case there was a surplus of the estates: in which case, as between two partners after payment of the common creditors of both, the equities of the houses should be adjusted out of the surplus estate. This decision was appealed from, but on account of the small amount of the estate the appeal was not prosecuted, and the cases seem still very confused. Perhaps the result is, that when the bills remain in the hands of the bankrupts, the cash balance is the debt, but when they have been negotiated the doctrine in Ex parte Read applies (i). When accommodation bills are in the hands of a third bills in the hands party, for a valuable consideration, he may prove the whole of each bill upon the estate of each of the parties to it, and receive dividends as far as the amount due to him (j). of an indorsee for value. (g) Ex parte Read, 1 G. & J. 224. (h) 2 D. & C. 199; 1 M. & B. 363, S. C. (i) See, however, the new enactment, 32 & 33 Vict. c. 71, s. 31. (j) Ex parte King, Cook's B. L. 177; Ex parte Lee, 1 P. Wms. 782; Ex parte Crossley, 3 Bro. CHAPTER Before the 6 Geo. 4, c. 16, interest on a bill was not proveable unless payable on the face of it (k), and no interest after the act of bankruptcy could be proved at all (7). But Proof interest. that act (m) enabled the holder to prove, on overdue bills or notes, for interest down to the date of the fiat at the rate usually allowed by the Court of Queen's Bench (n). The late general act, 12 & 13 Vict. c. 106, s. 180, allowed interest at 47. per cent. down to the time of filing the petition. By the last general act, 32 & 33 Vict. c. 71, s. 36, such interest is allowed as a jury might have allowed. /^ mec: 1308 "see": は ·P ༢.པ1% The assignees may recover interest when they are plain- Assignees' claim tiffs in an action as if no bankruptcy had happened (o). for interest. hosting Celegrapher note Other expenses, such as protesting, re-exchange, &c., if Expenses, rerecoverable in an action, are proveable (p). exchange, &c. tions, under how much, the Under separate adjudications of bankruptcy against dif- Where there are ferent parties to a bill or note, the holder may prove the several adjudicawhole amount of the money due to him upon the bill or which, and for note, at the time he makes his proof, and receive dividends holder may under each upon the sums proved, until he shall, together, prove. have received the whole amount. "In cases of bills or notes," says Lord Hardwicke, "where there is a drawer, and, perhaps, several indorsers, suppose two of these persons become bankrupts, the holder may prove his whole debt under each commission, and is entitled to receive satisfaction out of both estates, according to the dividends to be made, until he has received satisfaction for his whole debt for he has a double security, and it is neither law nor equity to take it from him. But if, before the bankruptcy of one, or before the proof is tendered, he had received payment of part from the other, he could only have proved the residue under the latter bankruptcy, as the form of proving his debt (p) Anon. 1 Atk. 140; Ex parte Moore, 2 Bro. C. C. 597; Ex parte Hoffman, Co. B. L. 194; Francis v. Rucker, Ambler, 672. In the first and last of these cases, the expenses had been incurred after the commission. rehin v Of keep the bell in LiR:10 Eg: In re Joins the act of bankruptcy and before hereupool Bank L RgE 5 ES 92 CHAPTER proof against estate bankrupt in mon than om country Proof against joint and separate Where an estate bankrupt both in England & Brazil + a bilchider has rec div a shows, because no more would remain due to him" (q). Where the creditor knowingly holds the joint and separate of two firms, in which firms were common partners, was involved in great uncertainty (u). Upon principle it should seem that in such cases there should be double proof. Accordingly by statute 32 & 33 Vict. c. 71, s. 37, repealing a somewhat similar enactment in the 24 & 25 Vict. c. 134, abr. 152, it is enacted, "If any bankrupt is, at the time of adjudication, liable in respect of distinct contracts as member of two or more distinct firms, or as a sole contractor and also as the member of a firm, the circumstance that such firms are in whole or in part composed of the same indi viduals, or that the sole contractor is also one of the joint has been paid afcontractors, shall not prevent proof in respect of such conthe Bagdonate tracts against the properties respectively liable upon such contracts" foregn) -& busse Honey & thom Ass it was bulch that he could not prove aga haze till all crers Where a creditor security. Where a creditor proves a debt, and holds certain bills of exchange or promissory notes, as securities, if any of then be afterwards paid to him, the amount of such payment must be expunged from the proof, and the future dividends will be paid on the residue only (w). (q) Ex parte Wildman, 1 Atk. 109; 2 Ves. 113, S. C.; Ex parte Par, 11 Ves. 65; 1 Rose, 76, S. C.; Ex parte Tayler, 1 De G. & J. 112; 26 L. J., Bank. 58. (r) Cooper v. Pepys, 1 Atk. 106; Ex parte Leers, 6 Ves. 644; Ex parte The Royal Bank of Scotland, 19 Ves. 310; Ex parte Worrall, 1 Cox, 309; see, however, In re Gibson and Johnson, cited 19 Ves. 311, and Ex parte De Tastet, 1 Rose, 16. (s) Ex parte Henton, De Gex, 550. (t) See the judgment of Lord Justice Turner in Ex parte Goldsmith, 25 L. J., Bank. 26. But see also Ex parte Thornton, 28 (u) See the authorities collected C Bank. 25; 1 De G. & J. 257, S, OR Jhan (1) Eva ante, pred47. ham, Cook's B. L. 176; Ex parte (4) Exharte Wilson S.K. 7. Chan Ap. 490. 341 CHAPTER Where creditor Where a creditor holds a bill as a security for a smaller sum than the amount of the bill, he may prove against any parties to the bill (except against the party who deposited holds a bill as the bill with him) for the whole amount of the bill, provided security. he do not receive more than twenty shillings in the pound on the debt due to him from the depositor of the bill (x). A holder who has bought up the notes or acceptances of Proof of bill acthe bankrupt after the bankruptcy will be admitted to quired after acprove (y), provided that, at the time of the bankruptcy, ruptcy. they were in the hand of a person entitled to prove (z). ceptor's bank If a trader deny himself to the holder of a bill on the Acts of bankmorning of the day when it is payable, though the trader ruptcy in respect pay it the same day, that is an act of bankruptcy (a). A bill of exchange is a chattel, the fraudulent transfer of which was an act of bankruptcy within the 6 Geo. 4, c. 16, s. 3 (b), and within the 12 & 13 Vict. c. 106, s. 67; and a fraudulent transfer of a bill of exchange is also clearly an act of bankruptcy within the recent act, 32 & 33 Vict. c. 71, s. 6. of bills. tioning creditor's A bill of exchange may be a good petitioning creditor's when a bill may debt, though it be not due, and that against the drawer, be a good petithough, after the bankruptcy, it be duly presented and paid debt. by the acceptor (c) Interest cannot be reckoned, for this purpose, as part of the debt, unless made payable on the face of the bill (d). Ves. 230; Ex parte Torgood, 19 Ves. 229; Ex parte Rushworth, 10 Ves. 419; Ex parte Rufford, 1 G. & J. 41; Ex parte Brown, 1 G. & J. 407. As to proof by one partner against the estate of his co-partner for any debt in respect of the partnership, see Ex parte Maude, 2 Chan. App. L. Rep. 550. (x) Ex parte King, Co. B. L. 177; Ex parte Crossley, 3 Bro. C. C. 237; Co. B. L. 177, S. C.; Ex parte Bloxham, 5 Ves. 499; see Ex parte Reader, Buck. 381; Ex parte Philips, 1 M., D. & D. 232. (y) Ex parte Lee, 1 P. Wms. 782; Ex parte Atkins, Buck. 479; Ex parte Deey, 2 Cov. 423; Ex parte Brymer, Co. B. L. 187; Ex parte Thomas, 1 Atk. 73; Joseph v. Orme, 2 N. R. 180; Mead v. Braham, 3 M. & Sel. 91; Conley v. Dunlop, 7 T. R. 565; Houle v. Baxter, 4 East, 177. (2) Ex parte Rogers, Buck. 490; see Ex parte Dickinson, 3 D. & C. 520; Ex parte Bolton, 1 M. & Bli. 412. See the Chapter on TRANSFER. (a) Colkett v. Freeman, 2 T. R. 59; and see Bleasby v. Crossley, 2 C. & P. 213. (b) Cumming v. Baily, 6 Bing. 363; 4 Moo. & P. 36, S. C. (c) Ex parte Douthat, 4 B. & Ald. 67; and see 32 & 33 Vict. c. 71, s. 31. But a bill at maturity must be presented, and due notice given to the drawer, or it will not constitute a good petitioning creditor's debt against him. Cooper v. Machin, 1 Bing. 426; 8 Moo. 536, S. C. (d) Cameron v. Smith, 2 B. & Ald. 305; In re Burgess, 8 Taunt. 660; 2 Moo. 745; Buck. 412. CHAPTER Though a bill be for the exact sum of 501., and not due at the time of the act of bankruptcy, the rebate of interest will not make it an insufficient petitioning creditor's debt (f). Where there is a specific exchange of accommodation acceptances, and before the bills are at maturity one of the parties commits an act of bankruptcy, it has been held that the bankrupt's acceptance is not a sufficient debt to support a commission, until the petitioning creditor has paid his own acceptance (g). Where an acceptor, for the accommodation of the bankrupt before an act of bankruptcy, paid the amount after an act of bankruptcy, it was formerly held, that this payment, being after an act of bankruptcy, did not support the commission (h). A bill or note which could not be sued on at law (i), or against law proceedings on which equity will enjoin, is not a good petitioning creditor's debt (k). It was at one time doubtful whether, if a bill existing before the act of bankruptcy were indorsed to the petitioning creditor, after the act of bankruptcy, the indorsee would be entitled to a commission (7). But it is now clear, that before the late statute 32 & 33 Vict. c. 71, s. 6, such a debt was sufficient. The debt on which the fiat was issued must have existed before the act of bankruptcy, but need not have existed in the petitioning creditor before it; the indorsee represents his indorser (m). But it must appear that there was a good petitioning creditor's debt in the petitioner at the time of the petition, and therefore it must be shown that (f) Brett v. Lerett, 13 East, 213; 1 Rose, 112, S. C. (g) Sarratt v. Austin, 4 Taunt. 200; 2 Rose, 112, S. C. (h) Ex parte Holding, 1 G. & J. 97. But see now 32 & 33 Vict. c. 71, s. 31. (i) Richmond v. Heapy, 1 Stark. 202; Buckland v. Newsame, 1 Taunt. 477; 1 Camp. 474, S. C. But see now 32 & 33 Vict. c. 71, s. 31. (k) Ex parte Page, 1 G. & J. 100. (1) Ex parte Lee, 1 P. Wms. 782. (m) Ex parte Thomas, 1 Atk. 73; Anon. 2 Wils. 135; Bingley v. Maddison, 1 Co. B. L. 32; Glaister v. Hewer, 7 T. R. 498. Before the year 1806, the petitioning creditor's debt must have existed before any act of bankruptcy, on the principle that a man who has committed an act of bankruptcy has no power to contract so as to bind his estate. But it was provided by the 46 Geo. 3, c. 135, s. 5, that the commission should not be defeated by an act of bankruptcy prior to the petitioning creditor's debt, of which act of bankruptcy the petitioning creditor had no notice. That statute is repealed by the 6 Geo. 4, c. 16; the 19th section of which latter act, and the 12 & 13 Vict. c. 106, s. 88, provides that no commission shall be invalidated by any act of bankruptcy prior to the petitioning creditor's debt, provided there be a sufficient act of bankruptcy after it. According, therefore, to the latter statute, notice to the petitioning creditor of the prior act of bankruptcy is in many cases immaterial. |