1844. Westminster, 15, 17, & 30. Where a bank rupt, after the commission of an Ex parte WILLIAM HENRY SHARP, one of the Public THIS was a petition on behalf of the above banking an act of bank. company, for the proof of a debt, which had been reruptcy, of which jected by the Commissioner. his bankers had notice--though not the act of bankruptcy on which the fiat issued-drew upon them In November 1841, the bankrupt, who had been a miller at Ivy Bridge, in Devonshire, opened a banking account with the banking company, at their branch bank at Plymouth. On the 28th December 1841, the bankseveral of his rupt, being then indebted to the bank in the sum of creditors, which 8647. 12s. Id., executed and delivered a bill of sale of all various cheques in favour of cheques were bankers; it was duly paid by the his stock in trade, goods, utensils, implements, farmingstock, and effects, which were enumerated in a schedule annexed to such bill of sale, together with a policy of held that the bankers could not prove the amount of these payments under the fiat. ers, with the assurance; but no possession of the property was de Where bank- livered, and the bankrupt was permitted to retain possession of it until the issuing of the fiat. Between the 28th December 1841 and the 12th February 1842, on which latter day the fiat was issued, the bankrupt paid into the branch bank, to the credit of his banking knowledge of an act of bankruptcy committed by their customer, took a guarantee from a surety on his behalf, to secure to a given account, various sums, amounting to 16077. 4s. 7d.; and amount all suins the bank, during the same period, paid various cheques, then, or there due from the customer, but after, to become drawn by the bankrupt, to the amount of 23121. 5s. 4d., in favour of several creditors of the bankrupt, which no notice of the cheques were duly paid to the creditors, in satisfaction of their respective debts. the surety had act of bank ruptcy, and afterwards paid to the bankers the full sum for which he was guarantee, with On the 10th February 1842, for the purpose of securing the debt then due from the bankrupt to the out specifying to which portion of the bankers' debt the payment was to be applied; Held, that such payment was to go in reduction of that portion of the bankers' debt which was proveable under the fiat, and not of that which was not proveable. bank, nine several guarantees by different persons were respectively signed and delivered by them to the manager of the bank, which were in the following form: "Guarantee for an existing current banking account, in consideration that the joint stock banking company, called "The National Provincial Bank of England," at my request, will allow Thomas Mason, of Stawford Mills, near Ivy Bridge, in the county of Devon, miller, to continue to have and keep a banking account with the said joint stock banking company, and will not require immediate payment of the balance now due from him to them on such account, I do hereby undertake and agree with the said joint stock banking company, to guarantee to the said banking company, of whomsoever the same now consists, or may hereafter from time to time consist, the due payment of the said banking account, to the extent of 50%. And I do hereby promise and agree with the said banking company, that the said Thomas Mason, his executors or administrators, shall, upon demand from time to time, and at all times hereafter, reimburse, and fully pay and satisfy to the said joint stock banking company, of whomsoever the same may from time to time consist, all and every such sum or sums of money to the extent of 50l., as now are, or may at any time or times hereafter be, due and owing from the said Thomas Mason, or his executors or his administrators, to the said joint stock banking company, of whomsoever the same may consist, upon the said banking account, or any other account whatsoever; and all and every sum or sums of money which the said joint stock banking company, of whomsoever the same may consist, shall or may at any time or times have lent or advanced to the said Thomas Mason, to the extent of 50l., or have paid or 1844. Ex parte SHARP. 1844. Ex parte become liable to pay for him; and all and every sum or sums of money, to the extent of 501., which the said joint stock banking company may have paid, lent, or advanced to or for the said Thomas Mason, or have become liable to pay for the said Thomas Mason; and all and every sum or sums of money, to the extent of 50%., which may at any time be due to the said joint stock banking company, by reason of the said Thomas Mason having at any time accepted, drawn, indorsed, paid, or negotiated any bill or bills of exchange, draft or drafts, note or notes, order or orders, or other liability, security, or engagement whatsoever, and whether the same shall have been drawn, accepted, negotiated, paid, or indorsed by the said Thomas Mason alone, or by him jointly with any other person or persons, or by reason of the said joint stock banking company having at any time or times discounted, paid or credited, or taken or received from the said Thomas Mason, or from any other person or persons, and whether on or by reason of the said banking account or otherwise, any bill or note, or bills or notes, accepted, made, drawn, indorsed, or negotiated by the said Thomas Mason, or jointly with any other person or persons whomsoever; and also all and every sum or sums of money, to the extent of 50l., which the said joint stock banking company, or any officer or officers thereof, have laid out, paid, or advanced, or are or shall become in any wise liable to pay or advance, to any person or persons whomsoever, to, for, or on the credit of the said Thomas Mason alone, or jointly with any other person or persons, together with all such commissions, lawful charges, and allowances at any time due to the said joint stock banking company, upon or by reason of the said account, or for advancing or paying such bills drafts, notes, orders, noting, liabilities, securities, and engagements, as are severally charged by bankers in such and the like cases, or as may be lawfully agreed to be paid by the said Thomas Mason, and also interest after the rate of five per cent. per annum for such sums as they may be in advance, or in balance against the said Thomas Mason, alone or jointly as aforesaid. Provided always, that this guarantee is not to extend my liability beyond the sum of 50l. And I further agree that this guarantee is to be a continuing one, and that if the said. joint stock banking company shall at any time recover any dividend or dividends on any estate of the said Thomas Mason, such dividends shall not go or be taken as in discharge of any part of this guarantee, but the said company shall be entitled to recover on this guarantee to the full extent of the said sum of 50%., notwithstanding any such dividends. And further, that it shall and may be lawful for the said joint stock banking company at any time to compound with the said Thomas Mason for the whole or any portion of his liability to the said joint stock banking company, or to give him such time for paying the same, or any part thereof, as to the said joint stock banking company may seem fit, and that, without releasing or in any way affecting my liability to the said joint stock banking company under this guarantee. As witness my hand, this 10th day of February 1842." On the 15th February 1842, the bankrupt being indebted to the banking company in the sum of 13847. 3s. 4d., they caused the stock in trade and effects comprised in the bill of sale to be sold, and received the proceeds, amounting to 4521. 9s. 9d. On the 22d February 1842 the fiat issued, and the adjudication proceeded on an act of bankruptcy com. 1844. Ex parte 1844. Ex parte mitted on the 16th of February, by the bankrupt absenting himself on that day from his dwelling-house and place of business, although a deposition was also made before the Commissioner of the bankrupt having assigned all his property to the petitioners by the abovementioned bill of sale. After the issuing of the fiat, the assignees brought two actions at law against the petitioners, and obtained a verdict in one for 16071. 4s. 7d., which had been paid by him into the bank after the date of the bill of sale, and recovered in the other action for the proceeds of the effects sold by the petitioners under the bill of sale. Under these circumstances, the bank applied to prove for the sum of 25217. 13s. 5d., being the amount of the balance due from the bankrupt at the date of the fiat, after deducting therefrom the sum of 450l., which had been received by the banking company upon the guaranties; but the Commissioner held that they could only prove for 4147. 12s. Id., the balance of the account due from the bankrupt on the 28th December 1841, after deducting therefrom the 450l. received upon the guaranties, on the ground that the deed of the 28th December 1841 was an act of bankruptcy, and that the Commissioner was bound to assume that the adjudication proceeded upon that act of bankruptcy as well as upon the other, and, therefore, that no sums advanced or paid by the bank, subsequently to the bill of sale, were proveable under the fiat. The Commissioner, however, permitted a claim to be entered for 21077. 1s. 4d., besides the proof for 4147. 12s. 1d. The petitioners contended, that the payments made by the bank on the cheques drawn by the bankrupt, after the date of the bill of sale, constituted a proveable debt, |