Held, that as the proceeds of the
railway shares were not applied to
the use of the partnership, the bank-
ing firm were not answerable for this
tortious act of their partner for his
own benefit, and consequently that
the customer had no right of proof
against the joint estate for the
amount of the difference between
the value of the shares subtracted
and those that were substituted. Ex
parte Eyre, 3 M. D. & D. 12; 1
Phill. 227.

Held, also, that the partners were
not chargeable with any loss occa-
sioned by this subtraction of the
shares, on the ground of negligence;
and that even if they were, it would
be a claim for unliquidated damages,
and therefore not provable against
the joint estate. Ibid.

5. A. and B., who are partners,
and C., as their surety, give a joint
and several promissory note to D.,
by which they "jointly and severally
promise to pay" to D. the amount of
a partnership debt, due from A. and
B. The note is signed by A. and B.,
not as individuals, but in their part-
nership firm, and by C. the surety.
Held, that this note could not be
treated as the several note of each
one of the three, but as the several
note only of the surety, and the joint
note of A. and B.; and that, on the
bankruptcy of A., who had survived
his partner B., the holder of the note
could only rank as a creditor against
the joint estate. Ex parte Wilson,
3 M. D. & D. 57.

A. survives B., his partner, and
continues the business in the same
firm of " A. and B.;" at the time of
B.'s death a large balance was owing
by them to their bankers, to whom
A., some time after B.'s death, in-
dorses several bills in the partnership
firm of A. and B. Held, that it
could not be inferred from this cir-
cumstance alone, that the bills were
so indorsed upon a partnership trans-
action of A. and B., and that the
bankers might prove the amount of
the bills against the separate estate
of A. Ibid.

6. The rule that a joint creditor
cannot prove against one of his
debtors, if another be solvent, is not
confined to cases of partnership, but
applies to co-contractors generally.
Ex parte Field, 3 M. D. & D. 95.

7. Two of the members of an iron
company carry on a distinct trade as
bankers, but are not the ordinary
bankers of the company. They make
advances at interest to the company,
for the purpose of relieving it when
it is in a state of difficulty and pres-
sure, and without taking or asking
for any security, and under such cir-
cumstances as to lead to the inference
that the advances would not have
been made, had not the bankers been
partners in the iron company. On
the company becoming bankrupt, and
there being no evidence, except such
as was furnished by the nature of
the transaction itself, that the cha-
racter of a banking transaction be-
longed to it: Held, that the advances,

though made by bankers, were not
made by them in their character of
bankers, and were consequently not
dealings between trade and trade,
giving a right of proof against the
estate of the company, the use of the
facilities afforded by a trade not being
necessarily a use of them in the trade
itself. Ex parte Williams, 3 M. D.
& D. 431.

See ASSIGNEES, 11-BANKER AND
CUSTOMER, 7-EXECUTION, 10-
PROOF, 1, 3-TRUSTEE, 2, 3.

PAYMENT BONA FIDE.
See FRAUDULEnt Preference.
PAYMENT INTO COURT.
A. and B. insured, in their joint
names, certain leasehold premises
which A. had mortgaged to B., and
B. paid the premium on the insu-
rance, and the policy was delivered
to him.
Afterwards the premises
were destroyed by fire; and then
A. became bankrupt, and the as-
signees prevailed on the insurance
company to pay the money due on
the policy to them; and they after-
wards paid it into the bank to the credit
of the accountant in bankruptcy. B.
filed a bill against the assignees, pray-
ing that the money received from the
company might be applied in satis-
faction of his mortgage debt. The
answer of the assignees tended to
impeach the mortgage on the ground
of usury. The Court, however, or-
dered them to pay the amount of the
money into Court. Rogers v. Graze-
brook, 12 Sim. 557.

Petitioning Creditor.

PAYMENTS, APPROPRIATION

OF.
See PROOF, 6.

PENDING PROCEEDINGS.
See CONTEMPT.

PETITION.

1. Signature of the London agent
of petitioners residing in Scotland
declared to be sufficient, on the agent
undertaking to be answerable for
costs. In re Topling, 3 M. D. & D.

93.

2. A petition signed by only one
of several assignees cannot be re-
ceived, unless it is served upon the
other assignee. Ex parte Brereton,
3 M. D. & D. 614.

3. On a petition to stay the bank-
rupt's certificate, the Court will not
grant the petition for further time to
file affidavits in reply, unless in the
course of the hearing there appears
to be just ground for granting such
indulgence. Ex parte Alsop, 3 M.
D. & D. 180.

See ADVERTISEMENT, 3, 5-AFFIDA-
VIT-PETITIONING CREDITOR, 3—
TRUST, 6.

PETITIONING CREDITOR.
1. Where a petitioning creditor's
debt consists of a certain principal
sum and interest, but, by reason of
its insufficiency, another debt is sub-
stituted for it under the 6 Geo. 4.
c. 16. s. 18, it is sufficient to con-
stitute such second debt a debt "not
anterior to the former," that the prin-

cipal sum was due before the accru-
ing of the substituted debt, although
the interest thereon may have been
accruing up to a period subsequent
thereto.

The proof of a petitioning credi-
tor's debt may be received in evi-
dence without its having been in-
rolled, provided the handwriting of
the petitioning creditor be proved,
and the deposition be produced from
the original proceedings under the
fiat.

Semble, that where a creditor proves
under a fiat in bankruptcy for a debt
due on bills of exchange of which the
bankrupt is the drawer, it is not ne-
cessary for him to aver in his depo-
sition that the bills were duly pre-
sented, and that notice of their dis-
honour was given to the bankrupt.
Fletcher v. Manning, 1 Car. & Kir.
350.

2. A petitioning creditor had sold
the bankrupt goods, in payment for
which he took three bills of exchange
accepted by the bankrupt, which the
creditor negotiated, and which were
not in his hands nor due at the time
he issued the fiat. The Commis-
sioner expunged the proof of his debt,
on the ground that the bills were not
in his possession at the time of the
bankruptcy. Held, that an order
might be made, under the 18th sec-
tion of the 6 Geo. 4. c. 16, for the
substitution of the debt of another
creditor. Ex parte Smith, 3 M. D. &
D. 341.

3. A petition to substitute a new

petitioning creditor's debt must be
served upon the petitioning creditor,
although his debt has been expunged,
and although the petition does not
pray costs against him. Ex parte
Ward, 3 M. D. & D. 24.

4. An order by the Court of Re-
view, substituting another debt in
lieu of that of the petitioning creditor,
stated that the Court "doth declare
that the debt of the said T. R. (the
petitioning creditor), &c. is an in-
sufficient debt to support the fiat,
&c.; and it appearing that the debt
of the said petitioners, proved by
them under the said fiat, &c., was
incurred not anterior to the said debt
of the said T. R. &c." An action hav-
ing been subsequently brought by the
assignees, the order was amended by
the Court of Review, on the eve of
a new trial, by introducing a recital
contained in the petition upon which
the order had been made," that the
said petitioners had duly proved a debt
under the said fiat;" but no statement
to that effect was inserted in the man-
datory part of the order: the amend-
ment was made without notice to the
defendant.

Held, that it was not necessary to
give notice of the amendment to the
defendant.

Held, also, that the amended order
must be taken to operate from the
date of the original order, and not
from the date of the amendment.

But held further, that such amended
order was insufficient, inasmuch as it
did not allege, as required by the

statute, that the debt of the petiti-,
oners had been proved prior to their
petition. Brancker v. Molyneux, 4
M. & G. 226.

5. A joint creditor of A. and B.
strikes a docket for a separate fiat
against A., and after the docket is
struck, A. delivers to him certain
bills of exchange, forming a portion
of the joint estate of A. and B., in
part satisfaction of his debt: Held,
that the creditor did not thereby in-
cur a forfeiture of his debt, under the
6 Geo. 4. c. 16. s. 8, and that the
words of that section," whereby such
person may receive more in the pound
than the other creditors," mean the
creditors entitled to receive dividends
under the particular bankruptcy; and
that the property, to the payment,
gift or delivery of which the section.
is meant to relate, is property which
forms a subject of distribution under
the particular fiat. Ex parte Smith,
3 M. D. & D. 144.

6. The Commissioners have power
to dispense with the attendance of
the petitioning creditor at the open-
ing of the fiat.

The circumstance that the affidavit
of debt was sworn before the solicitor
to the petitioning creditor, held not
sufficient ground for annulling the
fiat; but it is an improper practice,
and if it become general may be here-
after considered sufficient ground.
Ex parte Wright, 3 M. D. & D. 320.

Quære, whether rent covenanted
to be paid by a lease made during
the trading, but falling due after the

trading has ceased, can constitute a
good petitioning creditor's debt. Ex
parte Veysey, 3 M. D. & D. 420.
See ASSIGNEES, 6.

PLEADING.

1. Assumpsit against acceptor of
a bill of exchange, stating an indorse-
ment by S. the drawer, to one R.,
and by R. to the plaintiff.

The defendant pleaded, sixthly,
in effect, that he accepted the bill in
question for the accommodation of
S., the drawer, to enable him to de-
posit it with R. as a collateral secu-
rity for a debt due to R. from S.;
that R. took it on those terms; that
S., before the bill became due, paid
R. part of that debt, and tendered
the residue; that R. refused to re-
ceive the money tendered, kept the
bill, and indorsed it to the plaintiff
as a mere trustee, R. and the plaintiff
conspiring and colluding to cheat the
defendant: Held, on demurrer, that
the injuriâ was a good replication to
this plea, and the plea contained
merely matter of excuse.

The defendant pleaded, seventhly,
in effect, that the plaintiff had been
twice bankrupt, and obtained his
certificate each time, but that his es-
tate under the second bankruptcy had
not paid 15s. in the pound, and that
the bill was indorsed to him after his
second certificate: Held good, by
the Court of Queen's Bench on spe-
cial demurrer.

Held bad, by the Court of Ex-
chequer Chamber, reversing the judg-

ment in B. R., because it did not
state that the assignees had interfered,
or required the defendant to pay the
amount to them.

The plea stated the plaintiff be-
came and was a bankrupt; but did
not state any act of bankruptcy on
which the commission or fiat was
founded: Held sufficient, on special
demurrer, by the Court of Queen's
Bench.

After judgment for the plaintiff in
the Court of Error, the Court of
Queen's Bench allowed the plaintiff
to enter a retraxit for the defendant
of a plea which involved an issue in
fact, and which had been left on the
record, and carried up in the tran-
script, for the sole purpose of ex-
plaining the record, which would
have otherwise been unintelligible.
Herbert v. Sayer, 2 Dowl. & L. 49.

2. A plea (in assumpsit) setting
out three commissions of bankrupt
against the plaintiff, one fiat and two
discharges under insolvent debtors'
acts, and alleging that the plaintiff's
estate did not on any occasion pro-
duce 15s. in the pound, is bad for
duplicity.

The Court permitted the defendant
to amend on payment of costs, but
refused to allow him to plead the
various bankruptcies, &c. in several
pleas. Alexander v. Townley, 5 M.
& G. 300.

3. A. in 1837 bought goods of B.,
and allowed B. to remain in posses-
sion of them up to 1839, when B.
became a bankrupt. B.'s assignees

VOL. III.

made no claim, and B. retained pos-
session of the goods until 1841, when
the sheriff under a fi. fa. against B.
seized and sold the goods: after the
sale B.'s assignees gave notice of their
claim to the sheriff, who, upon re-
ceiving an indemnity, handed over
the proceeds to them. In trover,
brought by A. against the sheriff,
held, that under the plea of not pos-
sessed, the sheriff might set up the
title of the assignees. Leake v. Love-
day, 4 M. & G. 972.

4. Declaration in trover by as-
signees of a bankrupt stated that M.
and H., the bankrupts, before their
bankruptcy were lawfully possessed
of certain goods; that before the
bankruptcy they came to the pos-
session of the defendants; and that
the defendants, knowing the goods
to belong to the plaintiffs as as-
signees, after the bankruptcy con-
verted them. A separate commis-
sion issued against M. alone on the
7th of November; on the 8th the
goods were sold by the defendant
as sheriff; on the 9th a joint com-
mission issued against M. and H.,
under which the plaintiffs were ap-
pointed assignees; and the plaintiff's
afterwards, and after the goods were
delivered to the purchasers, de-
manded them of the defendants, who
refused them: Held, first, that the
sale, and not the demand and refusal,
constituted the conversion; secondly,
that the allegations of the declaration,
that the plaintiffs were possessed of
the goods as assignees of both bank-

3 н