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be valid although it does not include all the partners of such firm; and commissions against two or more persons may be superseded as to one or more without affecting the rest.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 bankrupt°, amount to the sum required, it is sufficient, though the creditor should have acquired it for less; as where the debt (amounting to 1007.) 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 bankruptcy, receives, after notice of the bankruptcy, a part of his debt so as to reduce it under 1007., 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 books", made some months before the act of bankruptcy, o Ex parte Lee, 1 P. Wms. 782 s Shaw v. Williams, 1 R. and M. 19. wherein it was stated that the bankrupt was indebted to the petitioning creditor in more than 2007.; 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. 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 debt, 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 debt; 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 2007., 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 may 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 acceptance b. 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 expiredc. The debt of the petitioning creditor must be a legal debt; hence the assignee of a bond cannot be a petitioning credi x Ambrose v. Clendon, Str. 1042, and Ca. Temp. Hard, 267. y Simpson v. Sikes, 6 M. and S. 295. z Jellis v. Mountford, 4 B. and A. 256 a Anon. C. B. 2 Wils. 135. b Sarrat v. Austin, 4 Taunt. 200 tord. 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 him. 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 solag. 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. 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 Lord Macclesfield, C. in ex parte Lee, 1 P. Wms. 783. S. P. e Quantock v. England, 5 Burr. 2628, adopting the opinion of Eyre, C. J. in Swayn v. Wallinger, Str. 746; but see exp. Seare, and exp. Dewdnay, 15 Ves. 498 and exp. Roffey, 2 Rose, 245, where it was holden, that a debt upon which the stat. of limitations had attached, was not proveable under a commission of bankruptcy; and, that the dividends paid upon such a debt should be refunded. See also Gregory v. Hurrill, 5 B. and C. viously committed an act of bankruptcy; it was holden P, that the obligee might abandon the bill of sale, and sue out a commission against the obligor. So a creditor, who with others had become a party to a deed of trust, by which, in consideration of the assignment of certain debts due to their debtor for their benefit they release their debts, is not thereby precluded from becoming a petitioning creditor, and suing out a commission of bankrupt against the debtor, on its being discovered that he had, previously to the execution of the deed, committed a secret act of bankruptcy; because the deed was wholly void by reason of the prior act of bankruptcy. But where the deed is not void, as where it was executed by two out of four trustees, it was holden, that the debt of one of the trustees who had executed was thereby extinguished, and he could not sue out a commission. One who has his debtor in execution cannot petitions. It is a general rule, that the petitioning creditor's debt must have been contracted before the act of bankruptcy. In an action for a breach of promise of marriage, A. recovered damages above 1007. against a trader who, between verdict and judgment, committed an act of bankruptcy; held that the debt on judgment was not a good petitioning creditor's debtt. It is also an established rule, that the assignees must prove the debt of the petitioning creditor, by the same evidence which must have been produced in an action against the bankrupt. Hence, in order to prove a petitioning creditor's debt, which arises by bond, proof of the acknowledgment of the obligor will not supersede the necessity of calling the subscribing witness". Entries made by the bankrupt in his books before the act of bankruptcy, provided the import of them is clear and unequivocal, are to be considered in the same light as parol declarations of the bankrupt, and therefore sufficient proof of the petitioning creditor's debt. But a written paper acknowledging that a balance of a certain sum is due to the petitioning creditor, and signed by the bankrupt, is not evidence, unless it is proved that it was written and acknowledged by the bankrupt before the date of the commission. And no declaration by the bankrupt, whether oral or written, subsequent to his bankruptcy, is admissible p Hull v. Smallwood, Peake's addl. cases, edited by Peake, jun. p. 13, Kenyon, C. J. q Doe d. Pitcher v. Anderson, 1 Stark. N. P. C. 262, 3. 5 M. and S. 161. S. C. r Small v. Marwood, 9 B. and C. 200. s Burnaby's case, Str. 653. Cohen v. t Ex parte Charles, 14 East, 197. y Hoare v. Coryton, 4 Taunt. 560. to prove a petitioning creditor's debt. The commission must appear to have been regularly granted. A second commission sued out against a bankrupt, pending a former, under which he has not obtained his certificate, is void, for an uncertificated bankrupt is incapable of trading for his own benefit. But where a prior and joint commission of bankrupt had been issued, but never acted on or suspended, held that such commission not being in legal operation, did not invalidate a second separate commission. In a case where it appeared, that not only the petitioning creditor's debt was contracted by the plaintiff, and the trading upon which he was declared bankrupt was carried on by him, and the act of bankruptcy committed during his infancy, but also the commission of bankrupt was issued out against him whilst he still continued an infant; it was holden", that the commission was not a valid commission in a court of law, and that the plaintiff might dispute its validity against the assignee without giving notice. A commission founded upon an act of bankruptcy, by lying two months (now 21 days) in prison, cannot be sued out before the expiration of the limited time. The act is not completed before that time, and the affidavit to obtain it would be perjury. A debtor of the bankrupt resisting a claim made by the assignees under the commission against him may give in evidence, in order to defeat such commission, a prior act of bankruptcy, and a sufficient petitioning creditor's debt existing at the time of such prior act of bankruptcy. But neither the bankrupt, nor any person claiming under him, will be permitted to avail himself of this defence. Nor will proof of a prior act of bankruptcy avail, unless the petitioning creditor's debt be shown to exist prior to the act of bankruptcyf; it is not, however, required to be shown, that the creditor ever meant to take out a commission upon that debt. But see ante, p. 257. The circumstance of a creditor having proved a debt under a commission will not estop him from impeaching the commission in an action brought by the assignees against himself; nor is it primâ facie evidence of the validity of the commission. The debt of a creditor, who has joined in a petition to supersede a prior commission, and z Martin v. O'Hara, Cowp. 823. e Donovan v. Duff, 9 East, 21. a Warner v. Barber, 2 Moore, (C. P.) f Per Lord Eldon, C. in R. v. Bullock, 71. b Belton v. Hodges, 9 Bingh. 365. c Gordon v. Wilkinson, 8 T. R. 507. d Parker v. Manning, cited in Doe v. 1 Taunt. 88. See also Miles v. Rawlins, 4 Esp. N. P. C. 191. g Stewart v. Richman, 1 Esp. N. P. C. 108. Boulcot, 2 Esp. N. P. C. 597. Mer- h Rankin v. Horner, 16 East, 191. cer v. Wise, 3 Esp. N. P. C. 216. |