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First. What bills proveable (continued.)

when part of consideration of a bill legal and part not, proveable as money had and received, 439, 9.

a bill payable at a certain time proveable, if payable on a contingency otherwise, 439.

the same with regard to acceptance, 438.

inland bills drawn before 1st August, 1821, and foreign bills accepted by letter proveable, 439.

indorsement in bankruptcy governed by same rules as in an action, 439.

and bill transferred for value, but not indorsed, when it cannot be proved, 439.

written guarantee to pay note of a third person not due at time of bankruptcy, is not proveable, 440.

when bills payable to fictitious persons may be proved, 440.

when assignees compellable to indorse to enable holder to prove, 440.

a lost bill may be proved upon giving indemnity, 440. but laches will operate here as in case of actions, 440. cancelled or settled bills cannot be proved, 440.

but bill in lieu of which others are given, are proveable if latter not paid, 440.

Secondly. Who may prove, 440 to 456.

In general,

bona fide holder may prove for whole sum contained in it, 441.

indorsee, after act of bankruptcy, though he cannot set off, may prove his debt, 441. 6.

or he may be petitioning creditor, 441.

indorsee of a note, after bankruptcy and after due, may prove it, 441.

and if drawer or indorser take up bill after bankruptcy of acceptor, they may prove. 441.

the same rule prevails against every other party liable to drawer or indorser, 441.

accommodation indorser may prove against accommodation acceptor, 441.


and petitioning creditor indorsing bill before bankruptcy, and then taking it up, may prove against acceptor, 441.

acceptor, for honour of drawer, after bankruptcy of original acceptor, may prove bill against such acceptor, 441, 2.

otherwise if original acceptor is an accommodation acceptor, 442.

if holder prove under two commissions, and receive
dividends under each, the assignees of one cannot
prove against the other, 442.

nor can bill be proved twice against same estate, 442.
a bona fide holder of an accommodation bill may prove
against the acceptor or drawer of bill, 442. 68 to 73.
but where party was not a bona fide holder, but has,
since the bankruptcy, been compelled to take it up, ·
it is frequently otherwise, 442.


Secondly, Who may prove-(continued.)

Rules as to accommodation bills divided into three, 442, 3.

1. Where there has been cross bills between the parties, 443 to 445. one bill given for another is a valid consideration, and each may prove, 443.

whether a bill was or was not transferred for another, governed by the particular circumstances, 443.

the variation in date and sum, when not material, 443. agreement to pay his own acceptance, is conclusive evidence that the bills were cross, 443.

but such party is not entitled to his dividend until his bill has been paid, 443.

nor can one party to cross bills prove payment to his acceptance against the drawer, 444.

and this though no payment has been made by such drawer on his own cross acceptance, 444.

in case of bankruptcy of one party dealing with another, cross acceptances which are respectively dishonoured, and also a cash account, how to proceed, 444.

if a cross bill is taken by the drawer after bankruptcy of acceptor, he may prove, 444.

but if holder prove both against drawer and acceptor, and
receive dividends, such drawer cannot prove against such
acceptor, 445, 6.

2. Where accommodating party has taken security, 445 to 447.
if the drawer be bankrupt, the holder may, even before ac-
commodation bill due, prove on the counter security, 445.
but in these cases the dividends are suspended till it appear
that the surety has paid his own bill, 445.

what these securities must be to entitle holder to prove, 445.
when there is a loan of bills from A. to B. as well as cash
account due to B., B. may prove under commission
against A. but dividends withheld till bills paid, 446.
and acceptor of a bill having funds of bankrupt in his hands,
may keep such funds to answer acceptance, 446.
not always necessary that security should be given expressly
for an indemnity, 446.

accommodation acceptor, who has paid bill, may set off his
debt against any claim on him, 447.

3. Where the accommodating party has taken no security, 447 to450. when he has paid before the bankruptcy, 447.

when he may prove under the commission, 447.

when he has not paid till after the bankruptcy, 447 to 450.
he cannot prove under the commission, unless he can
avail himself of the 49 Geo. 3. c. 121. 447.

no difference in this respect if accommodated party give
a parol or written promise to take up bill, 447.
but the right of an accommodation indorser not clearly
settled, 447, 8.

but acceptor of a bill or maker of a note, cannot, in any
case, prove, 448.

but doubtful if indorser of such a bill will come within the meaning of the stat. 7 Geo. 1. c. 31. 449.

arguments to support the principle that he can, 449, 450.


Benefit of holder's proof, 451 to 453.

when an accommodating party can prove in his own right, he may sometimes have the benefit of holder's proof, 451. and court of equity will compel the holder to prove his debt, and stay proceedings at law till he has done so. 451. [451. and surety lodging money to pay bill before proof by creditor, may retake the money to enable creditor to prove, 451. but a banker paying bankrupt's money after notice of the bankruptcy, will not be allowed to stand in creditor's place, 451.

if indorser prove under acceptor's commission, and drawer take up bill, drawer has an equitable right to indorser's proof, 452.

if payment is made by surety after bankruptcy, and before proof by creditor, neither can prove, 452.

on proof made and party paid by surety, and proof expunged, it may be restored for surety's benefit, 452.

creditor cannot be turned into a trustee for surety to pre-
judice his right on another demand against debtor's es-
tate, 452.

in such case what dividend will be allowed surety, 452.
but this doctrine qualified in case of surety's to a limited
amount, 453.

but surety not entitled to benefit of proof made by creditor on a distinct estate, with which he had nothing to do, 453. When he may prove under 42 Geo. 3. c. 121. s. 8., 453 to 456. enactment of that statute, 453.

decisions on the statute with respect to proof by accommodation acceptors, 454, 5.

[456. to proof by one partner against his bankrupt co-partners, no words in the act precluding a party from suing bankrupt, subject to the judgment being useless by obtaining his certificate, 456.

Thirdly, Against whom and under what commission, 456 to 460.
With relation to particular situation of bankrupt, 456 to 458.
holder of a bill may prove against all parties to it, 456.
negotiable securities transferred without indorsement,
cannot be proved even by bona fide holders, 457.
but this rule prevails, though bill unaccompanied by
separate written acknowledgment, 457.

when such holder may have benefit of the proof of the
person who last indorsed it, 456.

the same, though trader usually indorsed by a private mark, 458.

With respect to the number of parties, 458 to 460.

creditor may avail himself of all collateral securities to
the extent of 20s. in the pound, 458.

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, 458.
or prove against same, and proceed at law against
other, 458.

and a person may prove against the estates of the prin-
cipal surety or co-surety, 458.

creditor cannot prove against the joint estate of bankrupt partners, and estate of one only, 459.


With respect to the number of parties—(continued.)

but must elect, 459.

how long he may wait, 459.

unless there is a surplus, 459.


a joint debt cannot be 'proved under a separate commission, 457.

except for the purpose of assenting or dissenting to certificate, and getting payment out of surplus, 459. what circunstances will alter the rule, 459.

where partners are concerned in other trades, the paper of one firm given to creditors of another, they may take dividends from both estates, 459. 460.

when debts are joint and paid by a bill drawn on one debtor, and accepted by the other, he may prove against both, 459..

when credit joint against security separate, the same rule prevails, 459.

and vice versa, 459.

and money lent to different partners in same firm, and they agree to consolidate debt, proof may be against joint estate, 460.

Fourthly. To what extent proof may be made, 460 to 465. discounter of a bill entitled to full proof without deducting discount, 460.

same in case of a holder of a bill bought for less than sum due on it, 460.

same if debtor give an accommodation bill of another for larger amount than debt, 460.

same in regard to holder of bill pledged as security for the debt, 460.

but proof to this extent can only be against party to the bill, and not against debtor, 460.

holder may prove against drawer, acceptor, and indorsers, and receive a dividend from each to full amount of bill, 460.

and this though he has received payments on account reducing the debt, 460.

but under a commission against party from whom bill obtained, proof of what really due is allowed, 461. but this latter case only extends where the payment was made after proof, 461.

how far a creditor holding paper of third persons as se-
curity for his debt, may prove against debtor or such
persons, 461.

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,
advisable for holder therefore to prove under all as soon
as possible, 463.

of proof by friendly societies, under stat. 33 Geo. 3. c.
54., 462, 3.

enactment of the statute, 462.

decisions on it, 462, 3.

interest, how much recoverable, 463, 4.



Fourthly. To what extent proof may be made-(continued.) proveable when ever by express terms of instrument it is reserved, 463.

or where there is an agreement that the debt shall carry interest, 463.

or on notes payable on demand, not reserving it where by custom of trade it is allowed, 463.

or where it has been allowed on settlement of accounts between the parties, 463.

[certain, 468. in general proveable on all notes payable on any day how much recoverable, 464.

never in case of insolvency allowed after date of commission, 464.

and where act of bankruptcy ascertained, no interest allowed after that, 464.

and in cases of mutual credit, computation of it stops at same time, 464.

but where an estate turns out solvent, creditors may claim interest up to time of payment, 464.

£5 per cent. legal rate allowed, 464.

of the re-exchange, 464, 5.

Fifthly. The time of proving and making claim, 465, 6. no unnecessary delay should take place, 465.

and except in case of gross laches, creditors may prove at any time, 465.

when creditor proves after dividend declared, the practice, 465.

when a party cannot prove, advisable to make claim as soon as possible, 466.

Sixthly. The mode and terms of proof and remedy for dividend, 466 to 470.

ordinary proof by oath, 466.

forms of depositions, 466, and see Appendix, 657 to 663.-(See Precedents.")


what ought to be stated in the depositions, 466.

every security must be produced, and marked by commissioners, 466.

party inserting, on proving, must deliver up security, or apply to sell pledge, 467.

what have been deemed pledges or securities which must be delivered up, 467.

party having a debt, partly proveable and partly not, may apply same to debt not proveable, 467.

in what other causes he may do so, 467.

but where the bill was not deposited as a pledge, but indorsed, holder may prove his debt, or proceed at law, 467.

of proceeding at law, and proving also, 468.

direction of statute 49 Geo. 3. c. 121, in this respect,


observations on it, 468.

Reducing, expunging, and restoring proofs, 468, 9.
when after proof made, any thing appears so as to re-
duce or discharge debt, it may be reduced or dis-
charged accordingly, 468.

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