Benefit of holder's proof-(continued).
and stay proceedings at law till he has done so, 576.
and surety lodging money to pay bill before proof by creditor,
may retake the money to enable creditor to prove, 577.
but a banker paying bankrupt's money, after notice of the bank-
ruptcy, will not be allowed to stand in creditor's place, 577.
if indorser prove under acceptor's commission, and drawer take
up bill, drawer has an equitable right to indorser's proof, 577.
if payment is made by surety aiter bankruptcy, and before proof
by creditor, neither can prove, 577.
on proof made and party paid by surety, and proof expunged,
it may be restored for surety's benefit, 577.
creditor cannot be turned into a trustee for surety to prejudice his
right on another demand against debtor's estate, 578.
in such case what dividend will be allowed surety, 578, 9.
but this doctrine qualified in case of surety's to a limited amount,
579, 580.
but surety not entitled to benefit of proof made by creditor on a
distinct estate, with which he had nothing to do, 580.
When he may prove under 49 Geo. 3. c. 121. s. 8. 580 to 584.
enactment of that statute, 580, 1.
decisions on the statute with respect to proof by accommodation
acceptors, 581, 2, 3,
to proof by one partner against his bankrupt co-partners, 583.
no words in the act precluding a party from suing bankrupt, sub-
ject to the judgment being useless by obtaining his certificate,
583, 4.
Thirdly. Against whom and under what commission, 584 to 589.
With relation to particular situation of bankrupt, 584, 5, 6.
holder of a bill may prove against all parties to it, 584.
negotiable securities transferred without indorsement,
cannot be proved even by bonâ fide holders, 585, 6.
but this rule prevails, though bill unaccompanied by
separate written acknowledment, 584,
when such holder may have benefit of the proof of the
person who last indorsed it, 585.
[mark, 586.
the same, though trader usually indorsed by a private
With respect to the number of parties, 586 to 589.
creditor may avail himself of all collateral securities to
the extent of 20s. in the pound.
holder of a bill drawn by a firm on another firm of
same partners, if ignorant of their partnership, may
prove it under commission against both firms, 586, 7.
or prove against same, and proceed at law against other,
587.
and a person may prove against the estates of the prin-
cipal surety or co-surety, 587.
creditor cannot prove against the joint estate of bank-
rupt partners, and estate of one only, 587.
nor can a joint debt be proved under a separate com-
except for the purpose of assenting or dissenting to cer-
tificate, and getting payment out of surplus, 587.
what circumstances will alter the rule, 587.
where partners are concerned in other trades, the paper
of one firm given to creditors of another, they may
take dividends from both estates, 588.
With respect to the number of parties-(continued).
when debts are joint and paid by a bill drawn on one
debtor, and accepted by the other, he may prove
against both, 588.
when credit joint against security separate, the same rule
prevails, 588.
and money lent to different partners in same firm, and
they agree to consolidate debt, proof may be against
joint estate, 589.
Fourthly. To what extent proof may be made, 589 to 597.
discounter of a bill entitled to full proof without deduct-
ing discount, 589.
same in case of a holder of a bill bought for less than
sum due on it, 589.
same if debtor give an accommodation bill of another
for larger amount than debt, 589.
same in regard to holder of bill pledged as security for
the debt, 589.
but proof to this extend can only be against party to
the bill, against debtor can only be for amount of
debt, 589.
holder may prove against drawer, acceptor, and in-
dorsers, and receive a dividend from each to full
amount of bill, 589.
and this though he has received payments on account
reducing the debt, 589, 90.
but under a commission against party from whom bill
obtained, proof of what really due is allowed, 590.
but this latter case only extends where the payment was
made after proof, 590.
how far a creditor holding paper
of third
persons as se-
curity for his debt, may prove against debtor or such
persons, 590, 591.
if holder of a bill prove under one commission, and a
dividend is declared, he cannot prove under another
for more than what remains, deducting last dividend,
591.
advisable for holder therefore to prove under all as soon
as possible, 591.
of proof by friendly societies, under stat. 33 Geo. 3.
c. 54. 591 to 503.
enactment of the statute, 591, 2.
decisions on it, 592, 3.
interest, how much recoverable, 593 to 595.
proveable when ever by express terms of instrument it
is reserved, 593.
or where there is an agreement that the debt shall
carry interest, 593.
or on notes payable on demand, not reserving it where
by custom of trade it is allowed, 593, 4.
or where it has been allowed on settlement of accounts
between the parties, 593, 4.
[certain, 594.
in general proveable on all notes payable on any day
how much recoverable, 594.
never in case of insolvency allowed after date of com-
mission, 594.
and where act of bankruptcy ascertained, no interest
allowed after that, 595.
Fourthly. To what extent proof may be made―(continued).
and in cases of mutual credit, computation of it stops
at same time, 595.
but where an estate turns out solvent, creditors may
claim interest up to time of payment, 595.
£5 per cent. legal rate allowed, 595.
of the re-exchange, 595, 596.
Fifthly. The time of proving and making claim, 596 to 597.
no unnecessary delay should take place, 596.
and except in case of gross laches, creditors may prove
at any time, 596.
[tice, 596, 7.
when creditor proves after dividend declared, the prac
when a party cannot prove, advisable to make claim as
soon as possible, 597.
Sixthly. The mode and terms of proof and remedy for dividend,
597 to 604.
ordinary proof by oath, 598:
forms of depositions, 598, and see Appendix, 657 to
660.-(See " Precedents.")
what ought to be stated in the depositions, 598.
every security must be produced, and marked by com-
missioners, 598.
party inserting, on proving must deliver up security, or
apply to sell pledge, 599. [be delivered up, 599.
what have been deemed pledges or securities which must
party having a debt, partly proveable and partly not,
may apply same to debt not proveable, 599.
in what other causes he may do so, 599.
but where the bill was not deposited as a pledge, but
indorsed, holder may prove his debt, or proceed at
law, 599, 600.
of proceeding at law, and proving also, 600, 1.
direction of statute 49 Geo. 3. c. 121, in this
respect, 600, 1.
observations on it, 600, 1.
Reducing, expunging, and restoring proofs, 601, 2.
when after proof made, any thing appears so as to re-
duce or discharge debt, it may be reduced or dis-
charged accordingly, 601.
what will amount to one or the other, 601, 2.
when proof may be restored for benefit of another party,
602, 3.
remedy to recover dividends, 603, 4.
enactment of the stat. 49 Geo. 3, in this respect, 603.
Seventhly. The consequence of not proving, and the effect of certi
the effect of certificate, and how far bankrupt discharged
thereby, 604.
in what cases the certificate is no bar, 604, 5.
bankrupt discharged from a debt in one firm cannot
be charged by creditor with same debt in another,
606.
but sometimes the creditor is able to shape his action as
a tort, in which case certificate no bar, 606, 7.
efect of certificate avoided by a fresh contract, 607.
V. Of mutual credit and set-off, 607 to 617.
General observations and statutes, 607 to 617.
mutual demands may be set off against each other, 608.
enactment of the stat. 5 Geo. 2. c, 30, in this respect, 608.
BANKRUPTCY-(continued).
V. Of mutual credit and set-off-(continued).
46 Geo. 3. c. 135. 608, 9.
in these statutes the word "credit"
arranged under three heads;
[word "debt," 609.
more effective than the
[founded, 609 to 612.
1. The nature of the debt, and consideration upon which
what debt may be set off, 609 to 612. [610.
legacy after admission by executor may be set off,
illegality of consideration will not prevent the set-
ting off what is equitably due, 610.
and if assignees confirm acts of bankrupt by suing
in assumpsit, instead of for a tort, set-off allowed,
611.
The parties between whom the mutual credit may exist,
612 to 613.
[612.
debt must be due from both, in their own right,
a joint debt cannot be set against a separate one, 612.
governed by same rules as prevail at common law,
612.
under separate commissions set off disallowed
against a separate creditor indebted to partner-
ship in a larger sum, 613.
in what other cases allowed, 613.
3. Time when the debt or credit arose, 614 to 617.
both debts must accrue before bankruptcy, or two
months before commission, in case of a secret
act, 614.
yet if such debt be a credit, though not before the
act, it may be set off, 614.
if demand arise on a bill payable after, but made
before bankruptcy, set off is allowed, 614.
a bill payable unconditionally given to a surety,
may be set off, 615.
and a person lending notes of hand, and receiving
a memorandum, may set off amount of any note
paid by him after bankruptcy, against sum dus
from him to the bankrupt, 615.
a bill or note indorsed after bankruptcy cannot be
set off, though it may be proved, 615.
and therefore incumbent on such person to shew
that he got the bill, &c. before bankruptcy, 615.
possession by payee, how far evidence of the, 615.
what other evidence sufficient in this respect, 615.
a bill bona fide indorsed before act of bankruptcy,
and taken up and paid by him after such act
cannot be set off, 616.
provision of the stat. 46 Geo. 3. c. 135, in relation
to mutual credit, 617.
VI. General effect of bankruptcy on the property of the bankrupt, and
of others, 617 to 624.
arranged under two heads, 617.
1. The property of the bankrupt, and contracts entered into by
him, 617 to 619.
property of the bankrupt in hands of assignees generally
affected as if in his own hands, 617.
assignment of a debt for value by bankrupt before bank-
ruptcy, when binding on assignee, 617, 18.
indorsement of a bill after bankruptcy, but delivered be-
fore it is valid, 618.
1. The property of the bankrupt, and contracts entered into
by him (continued).
and if bankrupt not beneficially interested, he may do
any act respecting it as if he were not bankrupt, 618.
where bankrupt drew a bill, partly for value and partly
not, how much conveyed by his assignment, 618.
assignees cannot hold any property obtained by the
bankrupt by fraud, 618.
when bills, &c. indorsed after bankrupt had dishonoured
others, may be retained, 618.
indorsement after secret act of bankruptcy, protected
by statute, 619.
what other payments protected by statute, 619.
acceptance of bills does not bar vendor's right to stop
goods in transitu upon bankruptcy of vendee, 619.
2. The property of others, 619 to 623.
a banker has a general lien on bills paid into his hands
generally, 619.
a person has a lien on all property in his hands, for
which he has accepted a bill after the bankruptcy of
the owner, 620.
property in possession of bankrupt, though he be not the
real owner, will pass to his assignees, 620.
in case of the bankruptcy of a factor or banker, or other
person, what liens allowed on bills in their hands,
620, 1, 2.
but bills delivered to a banker expressly on terms of
discount, assignees entitled to them, 623.
what other cases assignees entitled, 623.
VII. Precedents of depositions in case of bankruptcy.-(See " Appen
dix." "Precedents."
VIII. Miscellaneous Points.
don't affect obligee's right of action after assignment, 10.
of one partner disables him from using name of firm, so as to ren
der co-partners liable, 46. 149.
on bankruptcy of stock broker's proof under commission of pro-
missory notes given upon a stock-jobbing transaction, how far
restrained, 102.
as far as it regards transfers, relates only back to the time of the
suing forth of the commission, 152.
[ment, 157.
a trader cannot, in contemplation of, make a voluntary indorse-
but it must appear that such indorsement was in contemplation
of bankruptcy, 157.-(See "Fraudulent Preference.")
if bill transferred through urgency of the demand the contempla-
tion of secrecy in the transaction will not vitiate, 157.
bill returned to indorsers, in contemplation of, is not a fraudulent
preference, 158.
of a drawer and acceptor of bill, &c. gives indorsee a lien on
drawer's effects in hands of acceptor, 182.
of the acceptor of an accommodation bill, indorser for like accom-
modation who pays the bill, may prove under the commission,
189.
of the drawer when it prevents drawee from accepting or paying
220, 221.-(Vide tit." Bankrupt.")
after secret act of by trader, consigning goods to a factor, how far
such factor is obliged to repay the money to assignees, 221.
accommodation acceptor, holder of a counter bill given as an in-
demnity by the drawer, may prove under drawer's commission
of, 255.
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