proveable.

to G. not indorsing it, but giving a written acknow- 1st. What bills ledgment on a separate paper, to be accountable for the note to G., and G. indorsed the note, which, together with the written acknowledgment, came into the hands of M. for valuable consideration, and B. and the several parties to the note, became bankrupts, it was held that M. could not prove the note against the estate of B., the written acknowledgment not being assignable, but was entitled to have the amount made an item in the account between B. and G. and to stand in the place of the latter'. So a written undertaking, guaranteeing the payment of a note of a third person, not due at the time of the act of bankruptcy, is not a debt proveable.

Bills made payable to fictitious payees may be proved by the indorsees for a valuable consideration against the acceptor, or any party who knew at the time that the payee was a fictitious person'. And where a party, who has become bankrupt, has transferred a bill, but has by mistake omitted to indorse it, he or his assignees may be compelled to indorse, so as to enable the holder to prove. A bill which has been lost before or after it is due, may be proved, upon the parties giving a sufficient indemnity to the satisfaction of the commissioners. But wherever the holder of a bill has been guilty of such laches or conduct, as would discharge the party at law, supposing he had continued solvent, they will equally preclude the holder from proving under a commission against him.

1 Ante, 187.-Cullen, 100, 111.-1 Mont. 142. 149, 150. Ex parte Adney, Cowp. 460.

3 Bennett v. Farnell, 1 Campb. 180. 130.-Aute, 84. n. 8.-Ex parte Clark, 3 Bro. 238.-and Ex parte Allen, Co. B. L. 172.

145.

- 1 Mont.

+ Ex parte Greening, 13 Ves. jun. 206.-Ante, 150.-Cullen, 100, 111. Mont. 142. Smith, Pickering, Peake, C. N. P. 50.

-

3 Bos. & Pul. 40.

5 Ex parte Greenway, 6 Ves. jun. 812. See further as to lost bills, ante, 190 to 204.

• Ex parte Wilson, 11 Ves. jun. 410.-Ante, 256. 554-Cullen, 99, 100.-Cooke, 167, 8, 9.

1st. What bills proveable.

2d. Who may prove.

And where the remedy on the bill may have been extinguished at law or in equity by the Statute of Limitations, the holder will not be allowed to prove under a commission '.

Where a bill has been paid or considered as cancelled or settled by another bill, it cannot be proved. But bills in lieu of which other bills are given, if permitted to remain with the holder, may be proved, in the event of the latter bills not being paid.

2dly, Who may prove.

With respect to the person who may prove a bill, we will consider first, the proof by a person, who being the holder, gave value for it at the time he became so; and secondly, the proof by a person who did not originally give value for the bill, but has since been compelled to pay it.

First, The bonâ fide holder of a bill or note, made originally for a valuable consideration, may prove for the whole sum contained in it, either against the acceptor, the drawer, or indorsers, whether the bill was due or not at the time of the act of bankruptcy '; but he must be holder for his own use, not as trustee for another, indebted to the estate. And when a bill or note is drawn before, but indorsed after the secret act of bankruptcy of the acceptor to another person, the indorsee, though he cannot set off the amount of the sum payable to any demand on him by the assignees, because the statute 5 Geo. 2. c. 30. relates only to mutual debts due before the bankruptcy; yet be a petitioning creditor for the amount, or

he

may

Ex parte Dewdney, 15 Ves. jun. 479.-Ante, 554, 5.

Ex parte Barclay, 7 Ves. jun. 597.

37 Geo. 1. c. 31.-Ante, 556.—Starey v. Barnes, 7 East. 435. Fair v. M'Iver, 16 East. 139, 140.

S Cooke, 567.--Marsh v. Chambers, 2 Stra. 1234.-—Grove v. Dubois, 1 T. R. 114.-Dickson v. Evans, 6 T. R. 57.-Ex parte Hale, 3 Ves. jun. 304.-Hankey v. Smith, 3 T. R. 507. n. 3.- Cullen 205. 74.-1 Montague, 543.

prove.

prove it under the commission, because he stands in 2d. Who may the place of the person from whom he received the instrument; and the debt is not created by the indorsement, but by the acceptance of the bill, or mak⚫ ing of the note'; nor will the circumstance of a note being indorsed after it was due make any difference. And if an indorser or drawer of a bill for a valuable consideration, take up and pay the whole bill, after the bankruptcy of the acceptor, or of any other party liable to him on the bill, and the bill has not been proved by some previous holder, under the commission against such acceptor or other party, such indorser or drawer is entitled to prove it under the commission against the acceptor or such other party 3; and it has even been decided, that where the bankrupt had accepted a bill for the accommodation of the drawer, and the indorser had indorsed the bill also for the accommodation of such drawer, and had paid it after the bankruptcy, he might prove it under the commission against such acceptor. So in the case, Ex parte Hale, it was decided, that the acceptor becoming bankrupt, and the petitioner, having indorsed it before the bankruptcy, took up the bill, he might prove, though he could not set off a debt due from him to the estate. And it has been decided, that if an acceptor for the honour of the drawer, after the bankruptcy of the original acceptor, pay the bill, he may prove it under the commission against such

'Ex parte Brymer, Cooke, 164, 5.-1 Mont. 48.-Cooke, 19. 164, 5.-Cites Ex parte Thomas, 1 Atk. 73.-Anon. 2 Wils. 135.Et vid. Toms v. Mytton, 2 Stra. 744. n. 1.-Glaister v. Hewer, 7 T. R. 499, 500.—3 Bos. & Pul. 395.—See 46 Geo. 3. c. 135. s. 5.

2

Bingley v. Maddison, K. B. Mich. Term, 1783.-Cooke, 19.7 T. R. 570. S. C.

3 Joseph v. Orme, 2 New Rep. 180.-Buckler v. Buttivant, 3 East. 72.-Ex parte Brymer, Co. B. L. 164.-Ex parte Seddon, cited 7 T. R. 563.-Howle v. Baxter, 3 East. 177.-And see 1 Mont. 147. n. k. Cullen, 98. n. 36-Bayl. 197.-1 Rose, 20.

4 Howle v. Baxter, 3 East. 177.—1 Mont. 152. but quære. See the cases post, as to a party to an accommodation bill,

53 Ves. jun, 304.

2d. Who may prove.

original acceptor'.
in the case Ex parte Lambert', in which it was de-
cided, that such acceptor supra protest, cannot prove
under the commission against the original acceptor,
where the latter had received no consideration from
the drawer.

But this doctrine was over-ruled

If the holder of a bill prove it, and receive dividends under the commission against the acceptor, and also under a commission against another party, the assignees of the latter cannot prove under the commission against the acceptor the amount of the dividends so paid by them. Upon this point all the Judges agreed, in the case of Cowley v. Dunlop3, for the same debt cannot be proved twice. under the same commission, and there is no hardship upon the indorser, whose estate has also been compelled to pay a dividend, because it cannot exceed the deficiency of the amount of the bill, beyond the dividend paid by the acceptor, and such deficiency would be the very sum which the indorser would have lost, had he been the holder of the bill.

With respect to an accommodation bill, or a bill where one of the parties may have subscribed his name without having received any value, many difficulties very frequently arise as to the right of the parties to prove. A party who has bonâ fide given a valuable consideration for such a bill, we have seen, is not affected by the want of consideration between other parties, and consequently may proce under a commission against such other parties'. But a party who has not given value for the bill, but has, since the act of bankruptcy been obliged to take it up, frequently stands in a different situation, and in many cases has been considered as unable to prove under

13 Ves. jun. 179.

37 T. R. 565.-1 Mont. 148, note o.

Ante, 88 to 95.-Ex parte Rushforth, 10 Ves. jun. 416, 7.

5 Cullen, 97.

prove.

the commission, on the ground that he is not clothed 2d. Who may with the rights of the bonâ fide holder, nor can justly swear that the bankrupt was indebted to him at the time of his bankruptcy. The rules upon this subject may be arranged under the following heads :

I. Where there is cross paper between the parties to the accommodation.

II. Where the accommodating party has taken a security.

III. Where the accommodating party has no security.

1st, When he has paid before the bankruptcy.
2d, When he has not paid.

3d, When he may compel the holder to prove.

4th, When he may prove under the Stat. 49 Geo. 3.

c. 121. s. 8.

First, If a bill of exchange or promissory note, be 1. Cross bills. given either in consideration of another bill or note, the consideration is valid, and the holder may prove it under a commission of bankruptcy'; and whether in an exchange of bills, one bill were transferred in consideration of the other, it must be determined by the particular circumstances of each case". The bills need not be payable at the same time, but any variation in the times of payment of the respective bills, is evidence, whether the parties did or did not transfer the bills in consideration of each other; nor need the bills be for the same sums, but any variation, is evidence, whether the parties did or did not transfer the bills in consideration of each other. And it seems,

'Ex parte Maydwell, and Ex parte Beaufoy, Cooke, 159.-Ex parte Clanricarde, Cooke, 162.-Rolfe v. Caslon, 2 Hen. Bla. 570, Cowley v. Dunlop, 7 T. R. 565.-Buckler p. Buttivant, 3 East. 72.

1 Mont. 138.

2 Vid. judgment of Lord Ellenborough in Buckler v. Buttivant, 3 East. 72.-1 Mont. 138. As to distinction between cross bills and reciprocal accommodation, see Bayl. 201.-May prove, but cannot issue commission, Bayl. 203. n. 2.-4 Taunt. 200.

Ex parte Maydwell, Cooke, 159.-Buckler u. Buttivant, 3 East. 73.-1 Mont. 138.

* Buckler v. Buttivant, 3 East. 72.-Ex parte Lee, 1 P. Wms. 782. 1 Mont. 839.