amendment. "The object of the act of Parliament," says his Lordship, "was to prevent a failure of justice from accidental errors. Now this is a blunder that no man could make who would but use his eyesight. I have always thought that we have gone too far from the strict rules for the purpose of obtaining justice in some particular case. The consequence of which has been, that those cases having been quoted as precedents, great laxity has been introduced into the practice."(n) But where, in an action by an indorsee against an indorser, the declaration stated the bill to have been made payable to the drawer, and to have been indorsed by him, whereas the bill, when produced, appeared to have been made payable to another payee, and to have been indorsed by such other payee, the Judge allowed the record to be amended, and the Court of Exchequer, after intimating an opinion that they were not competent to review the amendment, said, that in their judgment the discretion had been properly exercised.(o) A variance in the date will be amended.(p) An amendment can be made under this "statute only where a party [357] assumes to set out a written instrument. The power of amendment is now much enlarged by the 3 & 4 Wm. 4, c. 42, s. 23, and it is exercised under this act so liberally and beneficially, as to cure most instances of variance in actions on bills. Where the acceptor had died before presentment for payment, and the declaration in an action against the indorser, averred a presentment to the drawee, on which averment issue was taken, the plaintiff was permitted to amend by inserting an averment as well of the drawee's death as of presentment to his executor.(q) Yet the amendment must not be such as will make the declaration bad on special demurrer.(r) But this objection to the amendment must be pointed out at the time.(s) (n) Jelf v. Oriel, 4 C. & P. 22. (0) Parks v. Edge, 1 C. & M. 429; 3 Tyr. 364, 1 Dowl. 643, S. C. (p) Bentzing v. Scott, 4 C. & P. 24. (q) Caunt v. Thompson, 18 L. J. 125, C. P. (r) Oakley v. Pritchard, Exch. (8) Bury v. Blogg, 18 L. J., Q. B. 57. [*358] *CHAPTER XXXV. OF THE BANKRUPTCY OF PARTIES TO A BILL OR NOTE. [*359] *To discuss at length the subject of bankruptcy would far exceed our limits. It is proposed, therefore, merely to sketch an outline of the law on the subject, so far as it relates to bills and notes. The title of assignees (unless where restrained by particular enactment,)(a) relates to any act of bankruptcy after the date of the petitioning creditor's debt, but not to any act of bankruptcy before that date. It cannot of course relate to any act of bankruptcy prior to the petitioning creditor's debt, if there were not at the time of such prior act of bankruptcy another sufficient debt to found adjudication on.(6) Nor even if there were a sufficient debt to found an adjudication on; for as that would, even before the 46 Geo. 3, c. 145, s. 5, have invalidated the commission, (c) the assignees could not rely on it. The 46 Geo. 3, c. 145, s. 5, and the corresponding enactments, 6 Geo. 4, c. 16, s. 19, and 12 and 13 Vict. c. 106, s. 88, though they relieve the assignees from the disabling effect of such prior act of bankruptcy, do not go further, and enable the assignees to take advantage of it. Hence, it follows that the assignees cannot impeach transactions with the bankrupt in respect of bills and notes, except after an act of bankruptcy within the reach of the petitioning creditor's debt.(d) Further particular limitations within this general limitation are introduced by the old statutes, and by various sections of the new General Bankrupt Act.(e) Conveyances, contracts, and other transactions by the bankrupt, and executions against him, though after an act of bankruptcy, if without notice of it and more than two months before the issuing of the fiat, were valid even before the former General Bankrupt Act.(f) Thus, where a bill of exchange was delivered by a bankrupt, with intent to transfer the property, more than two months before the (a) The act of bankruptcy must be within twelve months before the petition, 12 & 13 Vict. c. 106, s. 88. (b) Doe v. Boulcot, 2 Esp. 595. (c) The bankrupt could not, under any circumstances, have availed himself of a prior act of bankruptcy to defeat the commission. Donovan v. Duff, 9 East, 21; Rex v. Bullock, 1 Taunt. 71. (d) Ward v. Clarke, M. & M. 497; Ex parte Birkett, 2 Rose, 71; Norman v. Booth, 10 B. & C. 703. The provisions of the 6 Geo. 4, c. 15, s. 16, for the substitution of another debt for the petitioning creditor's provided that the substituted debt shall not be of prior date. This proviso is omitted in the corresponding and now existing enactment, 12 & 13 Vict. c. 106, s. 103. (e) 12 & 13 Vict. c. 106. (f) 6 Geo. 4, c..16, s. 81. [*360] commission issued, though not actually indorsed till *within the two months, it was holden to vest in the indorsee, and not in the assignees.(g) And, now, all bona fide payments, by or to any bankrupt, and all contracts, dealings, and transactions with the bankrupt, before the filing of a petition for adjudication of bankruptcy, without notice of an act of bankruptcy are protected.(h) Purchasers of any property from the bankrupt, bona fide and for valuable consideration after an act of bankruptcy, and with notice thereof, are protected, unless a petition for adjudication of bankruptcy shall have been filed within twelve months after such act of bankruptcy.(i) The title to property sold under an adjudication of bankruptcy cannot be impeached by the bankrupt, or any person claiming under him, unless the bankrupt have commenced proceedings to annul the petition within twenty-one days from its advertisement in the Gazette.(k) It seems that the expression, notice of an act of bankruptcy, is satisfied by a general notice, that the party has committed an act of bankruptcy. And that notice of the specific act is not necessary.(1) It may be given to the party's attorney ;(m) but not to a mere clerk in the attorney's office, not having the management of the affair.(n) It may be given to the accredited agent of a body corporate or public company.(0) A bill given by the bankrupt to a petitioning creditor after bankruptcy is void.(p) (g) Anon. 1 Camp. 492, n. (h) 12 & 13 Vict. c. 106, s. 103, repealing and re-enacting the 2 Vict. c. 11, and 2 & 3 Vict. c. 29. (i) 12 & 13 Vict. c. 106, s. 134; see s. 86 of 6 Geo. 4, c. 16. (k) 12 & 13 Vict. c. 106, ss. 131 and 233, further periods are given him if he were out of the United Kingdom, s. 233. (7) Udal v. Walton, 14 Mees. & W. 254; and see Conway v. Nall, 1 C. B. 613; Follet v. Hoppe, 17 L. J. C. P. 76. (m) Rothwell v. Timbrell, 1 Dowl. N. S. 779. (n) Pike v. Stephens, 12 Q. B. 465; 18 L. J., C. P. 291; see Pennell v. Stephens; Fawcett v. Fearne, 6 Q. B. Rep. 20; Green v. Steer, 1 Q. B. Rep. 710. Notice to the sheriff is not sufficient to defeat an execution. Ramsey v. Eaton, 10 M. & W. 22. (0) 12 & 13 Vict. c. 106, s. 89. (p) Rose v. Main, 1 Bing. N. C. 357; 1 Scott, 127, S. C. See 12 & 13 Vict. c. 106, ss. 71 & 268. In almost all cases where a bankrupt would be liable to an action at law or suit in equity by the holder of a bill or note, the holder may prove on the bankrupt's estate for the amount of it. And whatever would be a defence to a suit in law or equity, will be an answer to such proof.(q) *Where a stock-jobber, having a large sum of money in his hands to be employed in stock-jobbing transactions, contrary [*361] to the 7 Geo. 2, c. 8, diverted part to his own use, and gave promissory notes to his employer, they were allowed to be proved only to the extent of the money diverted from the illegal purpose to the stock-jobber's own use. (99) "The equity is," says the Lord Chancellor, "that where the consideration consists of two parts, one bad, the other good, the bill shall stand as to what is good.”(r). Bills, notes, and securities, not due at the time of the bankruptcy may be proved, deducting a rebate of interest, at 51. per cent, to be computed from the declaration of a dividend.(8) The holder of a note payable on demand may prove, though no demand has been made before the act of bankruptcy.(t) A note payable at twelve months' notice with interest, is proveable against the estate of the maker, though he become bankrupt before any notice is given.(u) A bill or note defective in form, or void for want of a stamp, (v) or payable on a contingency, (w) or payable in notes, (x) is not, as a bill or note, proveable. A bill, as such, cannot be proved against a man who is not a party (9) See Ex parte Dewdney, 15 Ves. 495; Ex parte Smith, 3 Bro. C. C. 1; Ex parte Wilson, 11 Ves. 410; Ex parte Gifford, 6 Ves. 807; Ex parte Heath, 2 V. & B. 240; Ex parte Barclay, 7 Ves. 797; Ex parte Rofey, 19 Ves. 488; 2 Rose, 245, S. C. C. P. 76. (99) Ex parte Bulmer, 13 Ves. 2; (s) 12 & 13 Vict. c. 106, s. 172. See also the repealed act 6 Geo. 4, c. 16, s. 51. (t) Ex parte Beaufoy, Co. B. Law, 180. (u) Clayton v. Gosling, 5 B. & C. 360; 8 D. & R. 110, S. C.; Ex parte Elgar, 2 G. & J. 1; Ex parte Downman, 2 G. & J. 85, and 2 G. & J. 241. (v) Ex parte Manners, 1 Rose, 68. (w) Ex parte Tootel, 4 Ves. 372. (x) Ex parte Immeson, 2 Rose, 225; Ex parte Davidson, Buck, 31. |