for whom A. had discounted the Acceptances, by Payments on Account, reduced the Debt to £420. A. is entitled to prove for the whole Amount; and for all that is received above the £420 will be a Trustee for D. Ex parte De Tasted.

Page 10

20

2. A., the Payee of a Bill of Exchange, indorses it in blank, and delivers it to B.; B. writes above the blank Indorsement, pay C. or Order; B. takes up the Bill after a Commission of Bankrupt has issued against the Acceptor. Petition, that he may be at Liberty to prove it under the Commission, dismissed, with the Offer of a Case. Ex parte Isbester. 3. A Person giving Cash for a Bill, without the Indorsement of the Person from whom he takes it, cannot prove it under his Commission. ibid. 24. N. 4. A., in 1808, accepts Bills for B.'s Accommodation; B.becomes bankrupt, having paid away the Bills; and A. takes them up without having received Value. A. (the Debt not being proveable under the Commission) brings an Action against B., and recovers his Principal, Interest, and Costs. He then sells his Debt, and assigns the Judgment. The Assignee of this Judgment is, under Stat. 49 Geo. III. c. 121, s. 8, entitled to prove the original Debt under the Bankrupt's Commission, and to receive a proportionate Dividend; and the judg

6. The Proof of a Debt being refused, the Creditor enters up Judgment in an Action brought against the Bankrupt, and takes out a Ca. Sa., in order to fix the Bail. The Bankrupt surrenders himself in Discharge of them. The Creditor (his Debt being established) held not to be precluded from resorting to the Commission. Ex parte Arundel. 143 7. A Creditor having taken out Execution against the Bankrupt's Effects, gave up the Proceeds of it, received from the Sheriff, under an Agreement with the Assignees, that he should come in with the other Creditors for the Balance due to him. Such Agreement held to mean a proveable Balance, and not to let in the Debt if affected with Usury. Ex parte Banglay. 161 8. The Bank of England admitted to prove by their Clerk, without a Power of Attorney. Ex parte The Bank of England. 9. Where one Partner carries on a

142

distinct Trade, the other Partner

may

may prove under his Commission a Debt for Goods sold him by the Firm. Ex parte Hesham. Page 146 10. The Commissioners for issuing commercial Exchequer Bills, admitted, by their Secretary, to prove the full Amount of their Principal, with Interest up to the complete Payment of the Principal, in Preference to all other Creditors of the Bankrupt. Ex parte Holden.

173 11. Proof upon an Award, made after Act of Bankruptcy, expunged. Ex parte Kemshead. 149 12. A Covenant in a Marriage Settlement, to transfer Stock into the Names of Trustees, upon receiving one Month's Notice, with Liberty to the Trustees to forbear giving the Notice during the Life of the Covenanter, is a contingent Debt, not proveable under the Bankruptcy; the Bankruptcy not being equivalent to, or superseding the Necessity of, Notice. Ex parte Alcock. 13. A Petition to prove a Debt should state the Grounds of its Rejection.

323

:

290

281

17. Proviso in a composition Deed, that in Case of Default of Payment, or if any Commission of Bankrupt should issue, before the Whole of the Composition should be paid, then the Covenants on the Part of the Creditors, whose Debts should be so unsatisfied, should be null and void the second Instalment is not paid a Commission issues; the Creditors are entitled to retain the first Payment, and to prove under the Commission, for the Residue of the original Debt. Ex parte Vere. 18. A. purchases an Annuity of £200, for £2000, to be paid after her Death. The Grantor becomes bankrupt, and is indebted to her in £2275: 5s: gd. The Annuitant is not entitled to set off the £2000 against the £2275: 5s: 9d; for, as she could not be compelled to pay in Advance, the Bankrupt ought not to be compelled to receive in Advance. Ex parte Whitaker. 301 19. A. purchases an Annuity of B., secured upon Lands in Fee Simple, falsely represented to be of equal

Value

Value with the Annuity; and under that Representation not enrolled. Upon a Petition to prove for the Value of the Annuity, the Chancellor gave Liberty to prove, without Prejudice to a Bill, reserving Dividends. Quære, How far, in a Case of Fraud, the Provisions of the Annuity Act might be dispensed with; not as against the Grantor, but against his Creditors? Ex parte Wright. Page 308 20. The Proof or Claim of a Debt operates as a Discontinuance in an Action, so as to preclude the Ne. cessity of producing the Rule of Discontinuance, prior to the Proofs being admitted. Ex parte Woolley.

394 21. Composition between a Debtor and his Creditors, to pay them nine Shillings in the Pound, by four Instalments, with a Proviso, that in Case the Composition should not be duly paid, then that the Release should be null and void. The Debtor pays three Instalments, and becomes bankrupt before the Time for the Payment of the fourth. The Creditors are not remitted to their original Debt, but entitled to a Proof only for the Amount of the remaining Instalment. Ex parte

24. A., induced by the fraudulent Representations of B., as to the Profits of his Business, gives him a certain Sum of Money for a Share of it. On the Discovery of the Fraud, A. files a Bill in Equity for an Account, to have the Partnership declared void, and for a Receiver.

The Receiver was ordered: B. becomes bankrupt. Petition by A., to be admitted to prove under his Commission, refused, with Liberty to make a Claim. Ex parte Broome.

69

Country.

Country. On an Application by them, that the Bills drawn in the separate Name of A. might be considered as a partnership Debt, as having been applied to partnership Purposes, the Lord Chancellor, expressing an Opinion against the Claim, directed Dividends to be reserved till after an Action at Law. Ex parte Emly. Page 16 27. If one Partner, meaning to cheat the other, purchases Goods used in the partnership Business, and instantly pawns them to raise Money for his own Use, the other Partner is liable, although there may have been no previous Dealings between the Parties; unless the Seller is guilty of Collusion. ibid. 62. N. 28. The Act of one Partner will bind another, as Partner of a distinct Firm. 3. N. 29. Partners constituting distinct Firms may prove against each other. But in a Partnership of two, one carrying on Business separately, as they are both liable for the same joint Debts, the solvent Partner is not entitled to prove under the Bankruptcy of his Co-partner a Debt for Goods sold by his distinct House to the Firm, until the joint Creditors have been satisfied. Ex parte Adams. 30. A. and B. trading under the Firm of A. and Co. agree with C. to purchase Coffee on a joint Account. A. and Co. to have the Management of it. A. and Co. purchase the Coffee, VOL. I.

305

and C. pays them for his Share. A.
and Co. without the Consent of C.
deposit the Coffee with D. who ad-
vances Money on it, and, ignorant
that C. is concerned in it, debits A.
and Co. with the Advances. The
Coffee is sold at a Loss: a Commis-
sion issues against A. and B. and
another against C.; D. entitled to
prove his Balance beyond the Pro-
ceeds, against the Estate of C. as
well as against the Estate of 4.
and B.
Ex parte Gellar.

Page 297 31. A Partnership is not entitled to prove against the separate Estate of an individual Member of it, in Respect of Funds drawn by such Member out of the general Stock, unless the same have been drawn out fraudulently; that is, against the Articles of Partnership, without the Knowledge, Consent, Privity, or subsequent Approbation of his Co partners, or to increase his private Estate. Ex parte Harris. 437 32. The Conduct of the Parties in a Partnership may supersede the Stipulations of the Articles, and raise a Presumption of Assent to a different Agreement, and an Approbation of a Mode of Dealing with the partnership Funds, from their Knowledge of, and Acquiescence

in it. ibid. 33. Joint Creditors under a Bankruptcy are bound by a bonâ fide Disso lution of the Partnership, and an Assignment of the partnership Estate and Effects to one of the M M Partners.

Partners. But where, after a Dissolution and such an Assignment, a Bill was filed by the retiring Partner against the other, alleging Fraud in the Non-performance of the Articles of Dissolution, and praying an Injunction and a Receiver, which were ordered: held, upon a subsequent Bankruptcy, that such Interference of the Court restored the Property to its original Character, as joint Property; unless the Plaintiff in Equity had, by his Conduct, between the Time of his obtaining the Injunction and the Bankruptcy, rendered nugatory the Effect of such Interference. And upon that an Enquiry directed. Ex parte Rowlandson. Page 416 34. Creditor non compos mentis ; Proof, &c. admitted by a Person on his Behalf. Ex parte Maltby. 387

Cases in which the Bankrupt is protected. 264. N, Where a Bankrupt may apply by Motion to be discharged; and when by Petition.

230. N. 3. A Bankrupt, whose last Examina tion had been adjourned sine die, at a Meeting under his Commission for a distinct Purpose, gives his voluntary Attendance before the Commissioners in order to be examined, and is there arrested: held, to be entitled to his Discharge on general Common Law Principles, and ordered so to be, with his reasonable and necessary Charges to be paid by the Solicitor and the Officer. Ex parte Ross. 260 4. Where the Arrest is illegal, all

ibid.

Detainers are inoperative. ibid, 5. The Commissioners can give no Directions which will protect an Officer from the legal Consequence of discharging his Prisoner. 6. Bankrupt attending Commissioners under a Summons from them, is protected from Arrest upon an Extent at the Suit of the Crowns Ex parte Russell.

278 7. Courts of Law will, upon Motion, discharge a Defendant from the Arrest of a Creditor who has gone in under the Commission. Ather stone v. Huddlestone. 112 8. A Witness attending before Commissioners, in order to tender his

Testimony,