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of the petitioning creditor's debt, and of 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. It is only in actions or suits brought by his own assignees, for a debt or demand for which he might have sued, that the depositions under a commission against a person are conclusive evidence; but it is immaterial whether the cause of action arose before or afterd the act of bankruptcy. The depositions are conclusive in trialse at law. And by s. 93, if the assignees commence any action or suit, for any money so due to the bankrupt, before the time allowed for him to dispute the commission shall have elapsed, any defendant, in any such action or suit, shall be entitled, after notice given to the assignees to pay the same, or any part thereof, into the court in which such action or suit is brought: and all proceedings with respect to the money so paid into court shall thereupon be stayed, and after the time shall have elapsed, the assignees shall have the same paid to them out of court.
In all actions by and against assignees of a bankrupt or insolvent, the character in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issuef, unless specially denied.
Where notice had not been given to dispute the commission, and with the commission the proceedings were put in, upon which there did not appear a sufficient petitioning creditor's debt; it was holdenę, that the validity of the commission could not be disputed.
By s. 94, if the commission be afterwards superseded, persons from whom the assignees have recovered, or who have, without action, bona fide delivered up possession of any real or personal estate to the assignees, or paid any debt claimed by them, are discharged from claims by the bankrupt, provided the requisite notice to try the validity of the commission had not been given. Fiats, adjudications of bankruptcy, appointments of assignees, depositions, and other proceedings must be entered of record before they can be received in evidence either at law or in equity. See stat. 2 and 3 W. 4. c. 114. s. 1, 4, 5, 7, 8; and ante, p. 185.
c Muskett v. Drummond, 10 B. and C. e Young, assignee of Ireland, v. Tin159.
mins, I Cr. and J. 149, d Fox v. Mahoney, 2 Tyrw. 285 ; 2 Cr. f K. G. H. T. 4 W. 4. 21.
and J. 325; recognized in Kitchener & Macbeath v. Coates, 4 Bingh. 34. v. Power, 3 Ad, and Ell, 232.
Having in the 2nd, 3rd, and 4th sections of this chapter, enumerated the different trades which render persons liable to the bankrupt law, and also the several acts of bankruptcy mentioned in the statute, it will be unnecessary to repeat them here. I shall proceed, therefore, to the examination of the third head, viz. the proof relating to the commission, only observing that, with respect to the act of bankruptcy, proof must be given that it was antecedent to the commission; but if that appear, it will be sufficient, although the act was committed so recently before the commission, and at such a distance from London, that it could not have been known in London, at the time when the commission was sued outh. Proof of the commission ought to be by shewing it under seal, [if fiat, under hand of C., M. R., V. C., or M. C., as case may be. See 1 and 2 W. 4. c. 56. s. 12.] the petition to the chancellor on which it was granted, and the debt of the petitioning creditor or creditors. It is not necessary that the particular species of trading should be set forth in the commission'. A commission issued against an infant is void, and not merely voidablek.
By stat. 6 G. 4. c. 16. s. 15, no commission shall be issued, unless the single debt of the creditor, or of two or more persons being partners petitioning for the same, shall amount to 100l. or upwards, or unless the debt of two creditors so petitioning shall amount to 150l. or upwards, or unless the debt of three or more creditors so petitioning, shall amount to 2001. or upwards; and every person who has given credit to any trader upon valuable consideration for any sum payable at a certain time, which time shall not have arrived, when such trader committed an act of bankruptcy, may so petition or join in petitioning as aforesaid, whether he shall have any security in writing or otherwise for such sum or not. A second commission issued against a trader before a former has been disposed of, is a nullity!; inasmuch as there is nothing upon which it can operate, all the bankrupt's property being vested in the assignees under the first commission. So a third commission issued against a trader who has not paid any dividend under a first and second commission, is a nullitym. But in these cases there must have been an assignment" under the first commission.
h Hopper v. Richmond, 1 Stark. N. P.
C. 507. i Bernasconi v. Farebrother, 10 B. and
C. 553. k Belton v. Hodges, 9 Bingh. 365,
post p. 262. 1 Till v. Wilson, 7 B. and C. 684.
m Fowler v. Coster, 10 B. and C. 427,
recognizing Till v. Wilson. See also Nelson v. Cherrill, 8 Bing. 316; Bagley and others, assignees, &c. v.
Nicholls, B. R. M T, 3 W. 4. S. P. n Phillips v. Hopwood, I B. and Ad.
By s. 16, any creditor, whose debt is sufficient to entitle him to petition against all the partners of any firm, may petition for a commission against one or more partners of such firm; and every commission issued upon such petition shall be valid although it does not include all the partners of such firm; and commissions against two or more persons may be superseded as to one or more without affecting the rest. By s. 17, in cases of a second or other commission being issued against any other member of such firm, the chancellor may
direct such commission to be proceeded in separately, or in conjunction with the first commission. By s. 19, no commission shall be deemed invalid 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. If the debt, as against the bankrupto, amount to the sum required, it is sufficient, though the creditor should have acquired it for less; as where the debt (amounting to 1001.) consisted of notes payable by the bankrupt to other persons, who, before the act of bankruptcy, had indorsed them to the petitioning creditor upon his paying 108. in the pound for them; it was holden, that this debt was capable of supporting the commission. If a creditor to the amount required before an act of bankruptcyp, receives, after notice of the bankruptcy, a part of his debt so as to reduce it under 1001., he is not precluded from suing out a commission; because the part payment of the debt was illegal, and cannot be retained, consequently, the original debt remains in force to support the commission. But interest accruing before the act of bankruptcy cannot be added to the principal sum due on a bill of exchange so as to constitute a good petitioning creditor's debt, unless interest be reserved on the face of the bill; for where it is not so reserved, the interest forms no part of the debt, but is only in the nature of damages. So where the petitioning creditor's debt had been reduced below the amount required", by a bill drawn by the bankrupt on a person who, not having any effects of the bankrupt, refused to accept it, the original debt was considered as still in force, and sufficient to support the commission. A commission issued at the instance and request of the bankrupt is goods in a court of law. In order to prove the petitioning creditor's debt", the assignees relied on an entry in the bankrupt's hooksų, made some months before the act of bankruptcy, wherein it was stated that the bankrupt was indebted to the petitioning creditor in more than 2001.; but there was not any evidence that the debt continued down to the time of the bankruptcy; but Lord Ellenborough, C. J. held that the debt being proved to have once existed, its continuance would be presumed.
o Ex parte Lee, 1 P. Wms. 782
s Shaw v. Williams, 1 R. and M. 19.
Taking a security of a higher nature", after the bankruptcy, for a debt of an inferior nature, contracted before, does not so far extinguish the original debt as to prevent the creditor from suing a commission upon it; as in the case of a bond taken for a simple contract debt. Bankers' notes payable on demand, held by a creditor of the bankers, if not sufficient before demand made to constitute a good petitioning creditor's debty, do not extinguish the prior debt due from the bankers.
A creditor of an insolvent trader may, after the debtor's discharge under the 53 Geo. 3. c. 102, take out a commission of bankruptcy against him; and his debt, although included in the insolvent's schedule, will be a sufficient petitioning creditor's debt2; for the insolvent debtors' act does not contain any provision which extinguishes the debt.
A. a tradera, before he commits any act of bankruptcy, draws a promissory note for 2001., payable to B. or order, then A. commits an act of bankruptcy, and afterwards B. indorses the note over to C., who is the petitioning creditor; it was holden, per totam curiam, that he
well be so, for the 2001. was a debt due from the bankrupt before he committed the act of bankruptcy, to some person, viz. to B.
If two persons exchange acceptances, and before the bills are mature one of the acceptors commits an act of bankruptcy, there is not such a debt due from him to the other as will sustain a commission, before the other has paid his own acceptanceb.
Upon a sale of goods at six or nine months' credit, the purchaser, by not paying at the end of six months, makes his election to take credit for the nine months, and there is not any debt to support a commission until the nine months are expired.
The debt of the petitioning creditor must be a legal debt; hence the assignee of a bond cannot be a petitioning creditord. But a simple contract debt, though of above six years standing, will be sufficiente; for though the statute of limitations takes away the remedy, it does not destroy the debt. Husband entitled to a debt in right of his wife as executrix, cannot alone be the petitioning creditor, and the plaintiff assignee was nonsuited, because the wife was not made a petitioner with himf. Neither can husband alone be the petitioning creditor in respect of a debt composed partly of a sum due to him in his own right and partly of a sum due to his wife dum solas. The petitioning creditors' debt cannot be supported, when consisting of several creditors, one of whom is an infanth. Where the debt is due to a partnership, it must appear that all the partners to whom it is due concur in the proceeding. Hence a commission issued on the petition of one only of two partners to whom a joint debt is due, cannot be supportedi. But one of two executors may be a good petitioning creditor on a debt due to the testatork. A debt due from a partnership will support a separate commission!! So will a debt contracted before the party entered into tradem. A debt due to an attorney for his bill of costs, although a bill has not been signed and delivered by him in pursuance of stat. 2 Geo. 2. c. 23. s. 22, is notwithstanding a legal debt, and will support a commission". A debt for money lent, due to a creditor at the time when an act of bankruptcy is committed by the debtor, is sufficient to support a commission against him, though afterwards and before petitioning for such commission, the creditor obtains judgment against him for a sum of money including such debt, and the affidavit made in order to obtain the commission may be an affidavit of debt for money lento.
* Ambrose v. Clendon, Str. 1042, and a Anon. C. B. 2 Wils. 135. Ca. Temp. Hard, 267.
b Sarrat v. Austin, 4 Taunt. 200 y Simpson v. Sikes, 6 M. and S. 295.
c Price v. Nixon, 5 Taunt. 338. z Jellis v. Mountford, 4 B. and A. 256
A bill of sale of goods was given in satisfaction of a bond debt by the obligor, a trader, then indebted to several persons: it was afterwards discovered that the obligor had pre
d Medlicot's case, in Ch. Str. 899. per f Master v. Winter, at the London Sit
Lord Macclesfield, C. in ex parte tings, before Lord Hardwicke, Davies Lee, I P. Wms. 783. S. P.
292, 293, and 2 Montagu, 129. e Quantock v. England, 5 Burr. 2628, g Rumsey v. George, I M. and S. 176.
adopting the opinion of Eyre, C. J. h Exp. Morton, 1 Buck. 42. in Swayn v. Wallinger, Str. 746; but i Buckland v. Newsame, 1 Taunt. 477. see exp. Seare, and exp. Dewdnay, 15 k Treasure v. Jones, E. 25 Geo. 3. Ves. 498. and exp. Roffey, 2 Rose, MSS. of Lawrence, J. and Serjt. Hill's 245, where it was holden, that a debt MSS. Vol. 21. p. 162. S. C. upon which the stat. of limitations 1 Exp. Crisp. 1 Atk. 134. had attached, was not proveable un- m Butcher v. Easto, Doug. 282. der a commission of bankruptcy; n Exp. Sutton, 11 Ves. jun. 164. Ld. and, that the dividends paid upon Eldon, Ch. such a debt should be refunded. See o Bryant v. Withers, 2 M. and S. 123. also Gregory v. Hurrill, 5 B. and C.