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III. OF A PETITIONING CREDITOR IN RESPECT OF A BILL.

creditor's debt.

With respect to the petitioning creditor's debt; s. Petitioning when the bill or note is completely due and payable before the act of bankruptcy, his right to strike a docquet stands precisely in the same situation as that of other demands completely due. But with respect to bills and other negotiable securities not due at the time of the act of bankruptcy, the holder stands in a different situation. The date of a promissory note made by a bankrupt, is prima facie evidence to shew that the note existed before the bankruptcy; but no declaration by the bankrupt, subsequent to his bankruptcy, would be admissible to prove the fact'. But if two persons exchange acceptances, and before the bills are mature, one of them commits an act of bankruptcy, there is not such a debt due from him to the other, as will sustain a commission ".

The 7 Geo. 1. c. 313; enables persons, who have given credit on bills, bonds, promissory notes, or other personal securities, not due at the time of the act of bankruptcy, to prove the same under a commission, deducting a rebate of interest at £5 per cent; however, the 3d section enacted, "That no such creditor "shall be deemed or taken to be a sufficient creditor for or in respect of such debt, to petition, or join "in any petition, for the obtaining, or suing forth any commission of bankruptcy, until such time as "such debt shall become actually due and payable." But the statute 5 Geo. 2. c. 30. s. 22. reciting that this last restriction has been found to be inconvenient, enacts, "That persons taking bills, bonds, promissory notes, or other personal security for their money,

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payable at a future day, may petition for, or join in petitioning for, any commission of bankruptcy."

Taylor v. Kinlock, 1 Stark. 175. 179.—2 Rose, 474.

Sarratt v. Austin, 4 Taunt. 200. 208.—2 Rose, 112.

'See the statute in the Appendix; and as to the words "give "credit", see Lord Ellenborough's observation in Starey v. Barnes, 7 East. 441.

3. Petitioning creditor's debt.

Since this statute, if a bill be accepted before the act of bankruptcy, though it be not then payable, the holder may issue a commission against the acceptor: and as a bill, although not due at the time of the bankruptcy of the drawer or indorser, may be proved under a commission against them, it should seem, that since the Statute 5 Geo. 2. c. 30. s. 22. a commission might also be issued against such parties1; but it has recently been doubted, at nisi prius, whether a bill of exchange is a good petitioning creditors debt against the drawer before it becomes due, or has been dishonoured by the acceptor*.

It was recently determined', that a bill of exchange to the precise amount of £100, drawn and issued by a trader, before an act of bankruptcy, but becoming due afterwards, is sufficient, when due, to found a petition for a commission of bankrupt against him, though, allowing a rebate of interest, there was not at the time of the act of bankruptcy a debt of £100.

A creditor, by a bill or note, made by the bankrupt before an act of bankruptcy, but not indorsed to the holder till after, is allowed to be a petitioning creditor; for this is a case in which the law allows the assignment of a chose in action, and the assignment relates to the original debt, and the assignee stands in the original creditor's place. For the same reason, a creditor may, to a debt due to himself before, tack a note of the bankrupt, indorsed to him after the bankruptcy, to make up the sum required by the statute: it being sufficient within the words of the statute, that there is an existing debt (of the requi

2

1 Mont. 44.-Cullen, 74.

Macarty v. Barrow, 2 Str. 949.-3 Wils. 16. S. C.-Ex parte Adney, Cowp. 460.—1 Mont. 150.—Cullen, 98.—Bayl. 193, 4. 3 Starey v. Barnes, 7 East. 435.

4 Rose v. Rowcroft, 4 Campb. 245.

5 Brett v Levett, 13 East. 213.-Bayl. 193. n. 3.-1 Rose, 112Ex parte Thomas, 1 Atk. 73.-Anon. 2 Wils. 135.—Bingley. Maddison, Co. B. L. 19.--Cullen, 74.-1 Mont. 43. 46.—4 Campb. 246. in notes.-Bayl. 194, 5.

ereditor's debt.

site amount) in the person of the petitioning creditor 3. Petitioning at the time he petitions. It must be proved, however, in order to support the commission, that the bill was endorsed by the bankrupt to the petitioning creditor before the suing out of the commission.

The holder of a bill or note to the amount of £100, or upwards, though he may have bought it for less, is a creditor for the full sum, and may issue a commission'. But these statutes only enable creditors upon written securities to issue a commission, and do not enable a creditor, for goods sold on credit not elapsed, to strike a docquet, although the agreement were, that the goods should be paid for by a present bill payable at a future day. And these statutes do not affect bills of exchange or other securities given or indorsed after the act of bankruptcy, on which the commission is founded, in respect of which a person cannot in general be a petitioning creditor'; and though the 46 Geo. 3. c. 135. s. 2. enables persons to prove debts, contracted after a secret act of bankruptcy, and before the commission, yet it does not authorize a creditor to strike a docquet in respect of such a debt.

But when a good petitioning creditor's debt, and an act of bankruptcy subsequent to it has been proved, it is not sufficient, in order to invalidate a commission founded on it, to prove a prior act of bankruptcy, without also proving a prior debt, sufficient to. sustain a commission; and it is not competent for the bankrupt himself to set up a former act of bank

'Glaister v. Hlewer, 7 T. R. 498.-Cooke, 20.-Cullen, 75.-1 Mont. 48.

Rose v. Rowcroft, 4 Campb. 245.

3 Ex parte Lec, 1 P. Wms. 783.-Ex parte Marlar, 1 Atk. 150.1 Mont. 48.

+ Hoskins v. Duperoy, 9 East. 498.-Cothay v. Murray, 1 Campb.

335.

Moss v. Smith, 1 Campb. 489, 490 -Cullen, 73.-1 Mont. 40, 41.; but see the validity of all contracts entered into after a secret act of bankruptcy, more than two calendar months before the date of the commission, 46 Geo. 3. c. 135.—Bayl. 195, 6.

Moss v. Smith, 1 Campb. 489.

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3. Petitioning ereditor's debt.

ruptcy, in order to invalidate his commission'. And if a creditor take a bill after an act of bankruptcy, for a debt contracted before, drawn by the bankrupt upon one who had no effects in his hands at the time, or previous to the bill's becoming due, the original debt is not extinguished by want of notice to the drawer, of the bill's having been dishonoured, and is sufficient to support a commission. Want of notice, though in general tantamount to payment, is not so in this case; for having no effects in the drawce's hands, he cannot be injured. And it has even been held, that if, after committing a secret act of bankruptcy, a trader gives to his creditor a bond for a debt, due on simple contract before the act of bankruptcy, it does not so far extinguish the simple-contract debt, as to deprive the creditor of his right to petition'. Where, however, the laches, or conduct of the holder, have deprived him of his remedy at law against the trader, who has committed an act of bankruptcy, it will be equally incompetent to him to strike a docquet. And in general, if the commission be against the drawer or indorser of a bill, it must be proved that he had due notice of nonpayment, the same as in an action, but proof that after an act of bankruptcy, he admitted that he knew the bill would not be paid, will suffice*.

It was held in the case of Man v. Shepherd', that if a creditor, knowing that his debtor has committed an act of bankruptcy, receive part of his debt, the payment is void, and the original debt remains in force, and will support a commission, founded on the petition of such creditor. But a debt which could not be recovered in an action, in consequence of a

The King v. Bullock, 1 Taunt. 71.—Bayl. 195, 6.
Bickerdike v. Bollman, 1 T. R. 405.-Cullen, 75.

Ambrose v. Clendon, 2 Stra, 1943.-Daw v. Holdsworth, Peake, 64.-Cullen, 75.-1 Mont. 41 to 44.

Brett v. Levett, 13 East. 213.-1 Rose, 103. n. a.

6 T. R. 79.-Cullen, 69.-1 Mont. 35.

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creditor's debt.

plea of the Statute of Limitations, nor in equity by 3. Petitioning analogy to it, will not be sufficient to support a commission, or be proveable under it'. And in general, whatever objection would preclude the holder of a bill from recovering at law, or in equity, will equally preclude him from issuing a commission of bankruptcy; for, as observed by Lord Chancellor Eldon, in the case Ex parte Dewdney, "The meaning of the legislature in the bankrupt acts, requiring the Lord "Chancellor to give execution to all the creditors, was, that this species of execution should be given "to those creditors who, if a commission had not "issued, could by legal or equitable remedies have "compelled payment." Hence, it is necessary in considering when a person may strike a docquet, or prove in respect of a bill of exchange, to keep in view the rules which have been stated in the previous part of this work, as well as those more particularly relating to this part of the subject.

When the debt, in respect of which the docquet is to be struck, is due to several persons, whether as general partners or otherwise, they must all be pctitioning creditors, and a commission,. founded upon the petition of one of such creditors, could not be supported; the proceedings under a commission being analogous in this respect to an action. But it is not necessary that all the partners should join in the affidavit of the debt. It will suffice, if one of them swear that the debt is due to himself and partners *.

The petitioning creditor is considered as having determined his election by taking out a commission,

'Ex parte Dewdney, 15 Ves. jun. 479. and 498. acc.; but sce 1 Cooke, 15. contra.-15 Ves. jun. 495. If bankrupt don't object no one else can. See 5 Burr. 2638.-1 Mont. 38.-15 Ves. jun. 491. 3, 4.

Buckland V. Newsome, 1 Taunt. 477.-1 Campb. 474. S. C. 31 Saund. 153. n. 1. 291. f. g.—2 Stra. 820.-1 Bos. & Pul. 73. 2 Cooke, 1.-4 Mont. 14. note b. vide Form of Affidavit, post, Appendix,

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