ment to that effect in 5 Geo. 2, c. 30, s. 7, is omitted in 6 Geo. 4, c. 16 (g); and if it appear that the certificate was obtained by fraud (h), or that there are other grounds for disputing its validity (i), the court will not interfere in a summary way, but will leave the defendant to plead his bankruptcy and certificate. The certificate must be enrolled before the court will act upon it so as to discharge the bankrupt (k); and upon an application for discharge of the bankrupt, it must appear by affidavit that the certificate is enrolled (7). And where the bankrupt was taken under an attachment for not performing an award, the court refused to discharge him without giving the other party time to shew that the certificate was fraudulently obtained (m). So also, where judgment was entered up in Trinity term, and execution issued in Michaelmas term, and the bankrupts obtained their certificate on the same day the sheriff's officer levied, and the debt and costs were paid into court under a judge's order, to abide the event of a motion; the court refused to interfere, by ordering the money to be paid out of court, but left the parties to their auditâ querelâ (n). But where the certificate was obtained after issue and before judgment, and the bankrupt was then rendered by his bail, he was held entitled to his discharge in a summary way, although he had not pleaded his certificate puis darrein continuance (o); and although he had given a cognovit, payable at a time subsequent to that at which the plaintiff might have obtained judgment (p); but the court will not interfere on motion to discharge a certificated bankrupt, who has been arrested and given bail, but only when he is in custody (q).

The above section, of course, has reference to cases only where the bankrupt has obtained his certificate under an English fiat; if the bankrupt, who has obtained his certificate in a foreign country, be arrested here upon mesne process, the court will not discharge him upon common bail, but will leave him to whatever remedy he may have by pleading (r).

3. If a defendant in a bailable action become bankrupt, and obtain his certificate before his bail are fixed, the bail will thereupon be discharged (s). And where the bankrupt is required to appear before the commissioners in a distant county, the court in which the action is brought will enlarge the time for the bankrupt to surrender, until a reasonable time after he has passed his last examination (t); but not in the case of a town fiat, as the bankrupt, if ren

(g) Horn v. Jon, 4 B. & Adol. 78. (h) Vincent v. Brady, 2 H. Bl. 1: Sowley v. Jones, 2 W. Bl. 725: Martin v. O'Hara, Cowp. 823.

(i) Stacey v. Federici, 2 B. & P. 390. (k) Jacobs v. Phillips, 1 C., M. & R. 195; 2 Dow. 716: Oswald v. Williams, 5 Dow. 159.

(1) Oswald v. Williams, 5 Dow. 159. (m) Nowers v. Colman, Buck, 5. (n) Hanson v. Blakey, supra: and see Er p. Cullingford, p. 296, ante.

(0) Humphreys v. Knight, 6 Bing. 572; 4 Moore, 370.

(p) Oswald v. Williams, 5 Dow. 159. (q) Summers v. Jones, 6 Dow. 139; 3 Mon. & A. 400.

(r) Philpots v. Read, 1 B. & B. 13. (8) Johnson v. Lindsay, 2 D. & R. 385; 1 B. & C. 247: Woolley v. Cobbe, 1 Burr. 244.

(t) Maude v. Jowett, 3 East, 145; Glendenning v. Robinson, 1 Taunt. 320: Stead v. Tates, 3 Moo. & P. 272.

dered, may be brought up for examination (u); and the time for rendering the bankrupt will be enlarged, notwithstanding the provisions of 11 Geo. 4 & 1 Will. 4, c. 70, s. 21, authorizing the render of defendants in discharge of bail to the county prison (v). And the obtaining the certificate has the same operation as a render; therefore, if, after judgment against the principal, he becomes bankrupt, and obtains his certificate within fourteen days of service of process upon the bail, they are entitled, under the general rule of 17th June, 1833, to have proceedings against them stayed, though no notice is given to the plaintiff in the action, or any application made to stay such proceedings until after the fourteen days have expired (x). And where the bail as well as the principal became bankrupt, the court ordered them to be relieved on motion without pleading, though the bail bond had been ordered to stand as a security; but the bail must swear they have obtained their certificate (y); but if the bail be fixed before the allowance of the certificate, they remain liable, and the court cannot relieve them (z). But where the certificate was obtained after issue and before judgment, the court refused, on motion of the bail, to enter an exoneretur on the bail-piece, because the bail was not damnified, he being in a condition to render: the application should be by the bankrupt (a).

SECTION 14.

The Dividend.

Assignees' Accounts audited.] BY stat. 6 Geo. 4, c. 16, s. 106, the commissioners shall, at the meeting appointed for the last examination of the bankrupt, appoint a public meeting, not sooner than four calendar months from the issuing of the commission, nor later than six calendar months from the last examination of the bankrupt, whereof, and of the purport whereof, they shall give twenty-one days' notice in the London Gazette, to audit the accounts of the assignees : and the assignees at such meeting, shall deliver, upon oath, a true statement in writing of all money received by them respectively, and when, and on what account, and how the same have been employed; and the commissioners shall examine such statement, and compare the receipts with the payments, and ascertain what balances have been from time to time in the hands of such assignees respectively, and shall inquire whether any sum appearing to be in their hands, ought to be retained; and it shall be lawful for the said commissioners to examine the said assignees

(u) Coombs v. Dod, 3 M. & Scott, 817; Dow. 766, s. v.: Ruston v. Green, Dow. 617, contra.

(v) Harris v. Alcock, 1 Dow. 568.
(x) Jones v. Ellis, 1 Adol, & E. 383.

(y) Streeter v. Scott, 2 Dow. 362. (z) Stapleton v. Macbar, 7 Taunt. 589.

(a) Humphreys v. Knight, 6 Bing. 569.

upon oath touching the truth of such account, and in such accounts the said assignees shall be allowed to retain all such money as they shall have expended in suing out and prosecuting such commission, and all other just allowances. (See the form of the Advertisement, ii. p. 108; of the Memorandum of having audited the assignees' accounts, ii. p. 109; of the Assignees' account, ii. p. 110; and of the Affidavit to verify it, ii. p. 111).

And by sect. 107 (infra), no dividend shall be declared, unless the accounts of such assignees shall have been first so audited as aforesaid, and such statement delivered by them upon oath, as aforesaid. This, therefore, applies not only to the first, but to every subsequent dividend. (See 6 Geo. 4, c. 16, s. 109, infra). If one of several assignees is abroad, and the others have all the assets, the court will order the audit to pass on the oaths of the others (b). The commissioners have power, after the six months from the last examination have elapsed, to appoint a meeting to audit the accounts of the assignees (c). And notwithstanding the audit meeting has closed, and the assignees' accounts settled, commissioners at any future meeting have power to examine assignees as to monies received before, and not accounted for; and even to re-investigate those accounts (d); but commissioners cannot open the audited accounts of assignees without leave of the Court of Review (e). (See the forms of a further Dividend, ii. p. 121; and for a final Dividend, ü. p. 123).

If the assignees refuse or neglect to attend the meeting thus appointed, or to produce their accounts, the Court of Review, upon the petition of any of the creditors, will compel them, under the penalty of an attachment (ƒ). So, if the commissioners, upon application, refuse to call a meeting, a creditor may have the like remedy by petition (g); and the like when the commissioners refuse to declare a dividend, because a solicitor, to whom costs out of the estate had been ordered, had neglected to bring in his bill (h). Before the assignees attend at this meeting, they should pay the bills of the solicitor who sued out the fiat, and of the messenger,and also the bill of the solicitor to the fiat since the choice of assignees, if it be taxed,-if they have funds enough in their hands for that purpose. (See the next section, title "Costs").

Dividends declared.] By stat. 6 Geo. 4, c. 16, s. 107, the commissioners shall, not sooner than four nor later than twelve calendar months from the issuing the commission, appoint a public meeting, (whereof, and of the purport whereof, they shall give twenty-one days' notice in the London Gazette), to make a dividend of the bankrupt's estate, at which meeting all creditors who have not proved their debts, shall be entitled to prove the same; and the said commissioners, at such meeting, shall order such part of the net produce of the bankrupt's estate in the hands of the (b) Exp. Heatherly, 2 Dea. 93; 3 Mon. & A. 28.

(c) Er p. Holyland, 1 Dea. 357; 3 Mon. & A. 326: S. C., Id. 684.

(d) Ex p. Applegath, 2 Dea, & C. 101.

(e) Er p. Benham, 1 Dea. 26; 2 Mon. & A. 272.

(f) See Ex p. Whitchurch, 1 Atk. 91.
(g) See Exp. Brocksopp, Buck, 304.
(h) Ex p. Monk, 3 Mon. & A. 626.

assignees, as they shall think fit, to be forthwith divided amongst such creditors as have proved debts under the commission, in proportion to their respective debts, and shall make an order for a dividend in writing under their hands, and shall cause one part of such order to be filed amongst the proceedings under the commission, and shall deliver another part thereof to the assignees, which order shall contain an account of the time and place of making such order, of the amount of the debts proved, of the money remaining in the hands of the assignees to be divided, of how much in the pound is then ordered to be paid to every creditor, and of the money allowed by the commissioners to be retained by the assignees, with their reason for allowing the same to be so retained: and the assignees, in pursuance of such order, (and without any deed of distribution made for that purpose), shall forthwith make such dividend, and shall take receipts, in a book to be kept for that purpose, from each creditor, for the dividend received by such creditor; and such order and receipt shall be a discharge to every assignee for so much as he shall pay pursuant to such order; and no dividend shall be declared, unless the accounts of the assignees shall have been first so audited as aforesaid, and such statement delivered by them upon oath as aforesaid. (See the form of the Order, ii. p. 111; the like for a further Dividend, ii. p. 121; the like for a final Dividend, ii. p. 123. See also the form of the Receipt, ii. p. 116).

After the first or other dividend, all persons who prove their debts before a subsequent dividend is actually declared, and the order for the dividend made, will be entitled to a dividend upon the amount of their debts equal to all the previous dividends received by the other creditors, if there be funds sufficient in the hands of the assignees to pay it; and if there be more than sufficient to pay it, the surplus will be ordered to be divided amongst all the creditors, as well those who have last proved as those who had proved before (i). (See the Order for a Dividend, ii. p. 121). Where, at the meeting at which the dividend is declared, the proof of a debt is rejected, from a creditor being accidentally unable to produce the security, and immediate notice is given to the assignees to suspend the payment, or if the creditor, by mistake, had omitted to prove (k), the creditor, on application to the court, may have the dividend opened upon payment of costs (7). As to the claims which have been entered, they are usually allowed to remain until the final dividend, when they are struck out as a matter of course, if the creditor do not attend and substantiate them (m). (See ante, p. 153). And where fresh assets came to the hands of the assignees, after an order for the distribution of unclaimed dividends, under 6 Geo. 4, c. 16, s. 110, the further dividend was declared on all the debts proved, including those the dividends upon which were unclaimed; but the creditors whose

(i) See 1 Atk. 208: Ex p. Peachy, Id. 111: Er p. Long, 2 Bro. 50: Re Wheeler, 1 Sch. & Lef. 242.

(k) Ex p. Smith, 1 Dea. & C. 267: Er

p. Hunt, 2 Dea. 213.

(1) Ex p. Barclay, Mon. 126.
(m) 2 Cook, 134.

dividends were ordered to be distributed, were not placed pari passu with the other creditors, unless before the new dividends were declared the non-claimants had renewed their proofs (n).

The court will sometimes stay the payment of a dividend upon the petition of a creditor who has not proved; but only where the creditor has been prevented proving by fraud, accident, or mistake (0).

The assignees usually give notice of the time and place at which the dividend will be paid; and in order to save them trouble, the solicitor to the fiat usually computes the amount of each creditor's dividend, and, in country fiats, gives him an order for it upon the acting assignee, who pays it, and takes a receipt for it in the manner above directed. In paying the dividend, the assignee may retain out of it the amount of any private debt due to himself by the creditor (p); but where the creditor, after proving under the commission, sold and assigned his debt to another, it was holden that the assignee could not retain out of the dividend the amount of costs due to them by the creditor, which had accrued subsequently to the assignment (q). A creditor who had proved a debt, in consideration of the bankrupt's undertaking to pay the debt in full, and giving a bill of exchange for the amount, executed a power of attorney to a third person to receive the dividends to the bankrupt's use: before the bill was paid or the dividends received, a second commission issued against the bankrupt; the assignees under the second commission could not claim the dividends, for the creditor could revoke the power, the consideration having failed (r). Where a creditor addresses a written request to the assignees to pay "the dividends made on the bankrupt's estate" to J. S., the assignees are justified in paying subsequent dividends to J. S., until the creditor revokes the authority (s). Where a proof had been made under a settlement which was lost, the court ordered the dividend to be paid to the claimants without a reference, the fund being too small to bear that expense (t); but where the bankrupt is executor, and a proof is made by a creditor on behalf of himself and all other creditors of the testator, the court cannot order the dividends to be paid to the creditors, but will secure the fund for a distribution under a suit in equity when instituted (u).

Where the creditor has received more than the amount of his dividend, he will be liable to refund the excess to the estate; and where a creditor, who had by mistake been paid more than his dividend, had afterwards become assignee, he was, on petition, ordered to refund (x).

The following regulations established by the General Orders in

(n) Er p. Mowbray, 3 Dea. & C. 552; 1 Mon. & A. 300.

(0) Er p. Todd, 2 Dea. 416.

(p) Er p. Nockold, Cook, 509: see Er p. White, 1 Atk. 90: Bishop v.Church, 3 Atk. 691, contra.

(9) Ex p. Whitehead, 1 Glyn & J. 39. (r) Ex p. Smither, 1 Dea. 413; 3 Mon.

& A. 693.

(s) Er p. Bright, 2 Dea. & C. 8.

(t) Ex p. Harrison, 3 Dea. 25; 3 Mon. & A. 392.

(u) Ex p. Williams, 3 Dea. 378; 1 Mon. & C. 91.

(x) Ex p. Grimwood, 1 Dea. 394.