૬ 66 may prove under 49 Geo. 3. c. 121. disturbing the former dividends', and to receive a 2d. Who may provė. "dividend or dividends proportionably with the other 5. When surety creditors, taking the benefit of such commission, "notwithstanding such person may have become surety "or liable for the debt of the bankrupt after an act of bankruptcy had been committed by such bankrupt; "provided that such person had not, at the time when "he became such surety, or when he so became liable "for the debt of such bankrupt, notice of any act of bankruptcy by such bankrupt committed, or that "he was insolvent, or had stopped payment; pro"vided always that the issuing a commission of bankrupt, although such commission shall afterwards be superseded, shall be deemed such notice. And every person against whom any such commission of bankrupt has been, or shall be awarded, and who has obtained, or shall obtain his certificate, shall be discharged of all demands at the suit of every such person having so' paid, or being hereby enabled to prove as aforesaid, or to stand in the place of such "creditor as aforesaid, in regard to his debt, in re"spect of such suretyship or liability in like manner, "to all intents and purposes, as if such person had "been a creditor before the bankruptcy of the bankrupt, for the whole of the debt in respect of which "he was surety, or was so liable as aforesaid.” 66 Upon this statute it has been decided that an accommodation acceptor is a person liable for the debt of the bankrupt drawer, and may prove under his commission, and if an acceptance for the accommodation of the drawer of a bill be given before, and renewed after he has committed an act of bankruptcy, such re 'This means not compelling the creditors to refund any part of the dividends received. A point was made in 12 East. 664, but not determined. 1 Sch. & Lef. 242. 2 Means a general insolvency, &c. 1 Campb. 492. in notes. Under these words it has been held that the bankrupt, if sued, must nevertheless plead his certificate, and cannot give it in evidence under the general issue, Stedman v. Martinnant, 12 East. 664. Ex parte Yonge, 3 Ves. & B. 40. and see next note, 2d. Who may prove. 49 c. 121. newal is a continuation of the same suretyship; and therefore if a commission of bankruptcy be issued 3. When surety may prove under against the drawer, and the accommodation acceptor afterwards pay the bill, he will be entitled to prove the amount under such commission; though, before the renewal of the acceptance he had notice of such act of bankruptcy having been committed'. Nor will the case be varied in principle, by the circumstance of the holder of the first bill having, before the renewal, given time to the drawer; or by that of an additional name, as that of an indorser having been lent upon the second bill. And it has been decided, that if an accommodation acceptor having paid the bill, afterwards sues the drawer as for money paid, and having obtained judgment, assigns the judgment debt to a third person, such assignee of the debt may prove the original debt Stedman v. Martinnant, 13 East. Rep. 127.-12 East. Rep. 664. S. C. On the 5th of January, 1807, the plaintiff accepted a bill for the accommodation of the defendant the drawer, which became due on the 19th March, when it was dishonoured. On the 18th March, 1807, a docket was struck against the defendant, and on the 21st, a commission of bankrupt was issued, which was superseded on the 15th of April. A meeting of the defendant's creditors was then held, when time was given him to pay his debts by instalments. On the 9th of June, 1807, the plaintiff accepted a second bill for the defendant, in order to take up the former one, for the same sum with the addition of interest and stamp; and the indorsement of a third person was lent as an additional security, which was required by the holders of the former bill. On the 6th of August, 1807, a valid commission was issued against the defendant, founded on an act of bankruptcy committed in the preceding March. The second bill became due on the 12th of September, 1807, when the plaintiff paid it. The first dividend under the commission was declared and made on the 6th of August, 1808. On the 4th of September, 1809, the defendant obtained his certificate. In an action for money paid, and the bankruptcy and certificate pleaded, a verdict was found for the plaintiff, subject to the opinion of the court, as to whether the certificate was a discharge. The court (Le Blanc, J. absente) held, that the second acceptance was a continuation of the same suretyship which was created by the first, and that as such suretyship commenced before any act of bankruptcy committed, and consequently before the plaintiff could have any notice of such act, the plaintiff might by 49 Geo. 3. c. 121. s. 8. have proved his demand under the commission, and therefore the certificate was a bar. Postea to the defendant. 2 Id. ibid. Bayl. 200. prove. 49 Geo. 3. c. 192. under the commission against the drawer, and the 24. Who may judgment debt, though greater than the original debt, 5. When surety will be barred by the certificate'. So where a bill after may prove under proof under a commission against the acceptor, was paid by the drawer, and he after a dividend arrested the bankrupt for the balance, and was also a surety for him on another bill; the Chancellor made an order, that the bankrupt should be discharged, and that the plaintiff should be restrained from lodging any detainer under the above statute 49 Geo. 3. c. 121. s. 8. & 142. A partner is considered as a person liable for the joint debt of himself and his co-partners, and if the latter become a bankrupt, and the solvent partner be afterwards obliged to pay the whole debt, the certificate of the bankrupt partner will protect him from liability to make contribution to such solvent partner; and therefore where a partner continuing the business took an assignment of all the stock, &c. and covenanted to indemnify the retiring partner from the debts then owing from the partnership, and the continuing partner became a bankrupt, and obtained his certificate, and subsequently an action was commenced against the retiring partner upon an acceptance of the partnership, and judgment was obtained against him, and he paid the debt and costs; it was held, that no action would lie against the bankrupt upon the covenant; since, under the 49 Geo. 3. c. 121. s. 8. the retiring partner might on his liability have resorted to, and proved his debt under the commission, and was therefore barred by the certificate'. But there are not any words in the stat. 49 Geo. 3. c. 121. s. 8. compulsory upon the party to prove, or precluding him from suing the bankrupt, subject to such action being rendered ineffectual by his ob Ex parte Lloyd, 1 Rose, 4. 2 Ex parte Lobbon, 17 Ves. jun. 334, 5.-1 Rose, 219. 3 Wood v. Dodgson, 2 M. & S. 195.-2 Rose, 47. 2d. Who may prove. 5. When surety may prove under taining his certificate, and therefore the drawer of a bill who has paid the amount to the holder, after a 49 Geo. 3. c. 121. commission of bankruptcy issued against the acceptor, may sue the acceptor before he has obtained his certificate, and arrest him upon the bill, notwithstanding the holder has proved the bill under the commission'. 3dly, Against whom, and under Thirdly, against whom, or under what Commis sion. 3dly, We have next to inquire against whom or unwhat commission. der what commission, proof in respect of a bill may be made. And this may be considered under two heads; first, with relation to the particular situation of the party who has become bankrupt; and, secondly, to the number of the parties. First, A party who is a bonâ fide holder of a bill, drawn regularly for value, is, we have seen, entitled to prove in all cases under a commission against any one of the parties, against whom he could have supported an action on the bill, though such party became bankrupt before the bill was due, and at the time when it was uncertain whether it would be paid by the acceptor. So a bill drawn by way of accommodation, though it cannot be proved, as between the parties to the accommodation, yet it may be proved by a bonâ fide holder against all parties, whether they have received value or not3. Wherever the holder could have sustained an action on the bill against the party, had he continued solvent, he may prove under his commission, in case he should become bankrupt. The rights and liabilities of parties at law, have already been considered, and therefore it is unnecessary here again A Mead v. Braham, 3 M. & S. 91. Ante, 552.-Ex parte Marlar, 1 Atk. 150.--Cullen, 96. 3 Ex parte Marshall, 1 Atk. 130.-Ex parte King, Cooke, 157. Ex parte Crossley, Cooke, 158.-Ex parte Brymer, Cooke, 164.Cullen, 97-1 Mont. 152. whom, and under to notice the various decisions on the subject. In the 3dly, Against case of cross paper, and of a bill or note given by what commission. way of indemnity, we have seen that a party may frequently prove, before he has advanced money, or been damnified, though the dividends will be withheld till his own paper has been paid'. We have already considered the liability at law of a party transferring a bill, and we have seen that, in the case of a transfer by mere delivery, without an indorsement, the party is not in any case liable to be sued by any holder, except the party to whom he immediately transferred it, and then not upon the instrument itself, but for the precedent debt or consideration between them; and that in the case of the sale of a bill, the party transferring is not liable to any party. So in the event of bankruptcy it appears from the case in Re Barrington, that if B. hand over a negotiable note for valuable consideration to G. not indorsing it, but giving a written acknowledgment on a separate paper, to be accountable for the note to G., G. indorses the note, which, together with the written acknowledgment, comes into the hands of M. for valuable consideration, and B. and the several parties to the note become bankrupts, 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 in the case of Ex parte Harrison', it was held, that if a person transfer a bill, without indorsing it, but by a written instrument warrant the pay 'ment, in the same manner as if he had indorsed it, and he become a bankrupt before the bill is due, the holder cannot prove it under the commission against him. And if a trader procure cash for a bill, but do Aute, 565, &c. 22 Scho, and Lef. 112. 32 Bro. 615.-Ex parte Shuttleworth, 3 Ves. jun. 368.-Cullen, 100, 101. |