X. Bankruptcy; a title which we before lightly touched upon, (a) so far as it related to the transfer of the real estate of the bankrupt. At present

a See page 285.

expense, and for the common benefit, of them all. The debtor is at once, by operation of law, devested of all his property real and personal, which is transferred to trustees chosen by his creditors. But if the debtor make a full discovery, and appear to have acted without fraud, he then becomes entitled to a complete discharge, both of his person and of any effects he may afterwards acquire, and also to a reasonable allowance out of his former effects, proportioned to his good conduct, and the amount of the dividend which his estate pays to his creditors. The advantages however of this system of law are confined exclusively to traders and the creditors of traders; a restriction which, upon the slightest attention to the statutes, appears plainly to be founded, partly upon the circumstance of traders having greater opportunities than other persons of committing frauds upon their creditors, partly upon that of the greater and inore sudden variations in the state and condition of their property, to which traders, even without fraud, are peculiarly exposed. The earlier statutes seem only to have had in view the prevention of the frauds of the trader and the relief of the creditor; the latter have, with these objects, combined that also of the unfortunate and honest debtor. Bankruptcy and insolvency, though sometimes confounded, are things perfectly distinct in law. One who is insolvent may never become a bankrupt, or be capable of becoming so; and a bankrupt may finally prove to be solvent. See Introduction to Cullen's Bankrupt L. Another system of law, applicable to insolvent debtors of every description, has been introduced in modern times, so as to relieve such persons from perpetual imprisonment, to which they might otherwise be subject. See 3 Geo. IV. c. 119.

The new Bankrupt Act, 6 Geo. IV. c. 16. having made most extensive changes in a system which had long been the subject of complaint, it becomes an important and interesting object to shew in what manner the present enactments have been introduced, and to trace generally, but concisely, the principal alterations which they effect. In the course of the November sessions of 1817 and 1818, the attention of the public was called to the state of the bankrupt laws, by the proceedings of a committee of the house of commons. Some short, though not very important, amendments in the law were introduced by the two statutes 3 Geo. IV. c. 74. and c. 31. and further improvements were in progress through parliament in the course of the session of 1822. In the session of 1823, a consolidation bill was introduced into parliament, framed with a most diligent and attentive examination of every clause of the old statutes, and of the cases decided upon the construction of them. In the session of 1824. the bill, considerably amended, was again introduced, and received the royal assent; but it had been provided that it was not to come into operation till the 1st of May, 1825; and as many most important and valuable amendments had occurred in the interim, it was thought expedient to replace it by the present act, which, in order that no surprise might be effected through ignorance of its provisions, it was declared should not take effect till the 1st. day of September 1825. In the new act, besides a specific enumeration of several classes of persons, the general words of description have been so enlarged, as to comprehend every one who ought upon correct principles of bankrupt law, to be liable to its inconveniences, or entitled to its immunities. It has introduced several new acts of bankruptcy, which either upon the former narrow notion of bankruptcy being a crime, or upon the consequence deduced from it, that it could not be committed abroad, have not hitherto been ranked as acts of bankruptcy. The great and important principle that a trader who finds himself in insolvent circumstances may publicly declare it, and take such steps as may secure the distribution of his estate among his creditors, has been now first adopted. On the other hand, the doctrine that the conveyance of all a trader's property to trustees in trust for his creditors, is an act of bankruptcy, has been thus far limited, that if certain formalities to ensure publicity are complied with, a commission cannot be sued out upon it after six months. The proof of various debts, which were before not proveable, is now permitted; as, for instance, contingent debts, costs, interest on promissory notes, by sureties for annuities, and peculiar indulgences are given to clerks, servants, and apprentices. All payments whatever, either by or to the bankrupt, without notice of an act of bankruptcy, are protected down to the date of the commission; and upon the principle that there should be a period when purchasers are not to be molested, and litigation should cease, it is provided, that purchasers for valuable considerations, even with notice of an act of bankruptcy, shall not be impeached, unless a commission issue within twelve months after such act of bankruptcy. The subject matter of the notice which is to affect the party dealing with the bankrupt, and which varied in almost every former act, is now made uniform, being notice only of an act of bankruptcy; and the presumption that the issuing of a commission (a fact known only to a few clerks) is notice of an act of bankruptcy to all the world, is abolished, the only constructive notice now being the circumstance of a commission having appeared so long a time in the Gazette, that the party to be affected by it might have seen it. All debts are allowed to carry interest in the event of a surplus, according to certam priorities; and under a second commission future effects are vested in the assignees, unless 15s. in the pound is paid; and finally, an important provision has been adopted from the Scotch sequestration act, termed the composition contract, by which, if a composition or security for a composition is offered, which is approved by two meetings of creditors, and by a majority of nine-tenths in value of the creditors at each of such meetings, the lord chancellor is directed to supersede the commission. The above is a short sketch of the amendments introduced by this act. They

we are to treat of it more minutely, as it principally relates to the disposition of chattels, in which the property of persons concerned in trade more

are not only most beneficial in themselves, but they may be hailed as a prelude to a change which will be alone worthy them all, and without which their value cannot be adequately appreciated; for unless a complete alteration be made in the tribunal by which bankrupt law is pri marily administered, it will be in vain to expect that the reproach which has attached to the system will be removed. See the introduction to Mr. Eden's able work on the bankrupt laws. We will now consider more particularly the new enactments of the 6 Geo. IV. c. 16. and such decisions as may be applicable.

Sect. 1. repeals wholly 34 & 35 Hen. VIII. c. 4. 13 Eliz. c. 7. 1 James I. c. 15. 21 James I. c. 19. 13 & 14 Car. II. c. 24. 10 Ann. c. 15. 7 Geo. I. c. 31. 5 Geo. II. c. 30. 19 Geo. II. c. 32. 4 Geo. III. c. 33. 37 Geo. III. c. 124. 46 Geo. III. c. 135, 49 Geo. III. c. 121. 56 Geo. III. c. 137. 3 Geo. IV. 74. 3 Geo. IV. c. 81. 5 Geo. IV. c. 98. ; and also repeals in part 24 Geo. II. c. 57. 36 Geo. III. c. 90. 45 Geo. III. c. 124. 1 Geo. IV. c. 115. Sect. 136. enacts, that the act shall not take effect until the 1st of September, 1825, save that the repeal of the 5 Geo. IV. c. 98. and all enactments relating to certificates of conformity, shall take effect upon the passing of this act. (May 2d, 1825.)

First, Who may become Bankrupt.-Sect. 2., to the traders designated in the former statutes, adds, "Persons insuring ships or their freight, or other matters, against perils of the sea, warehousemen, wharfingers, packers, builders, carpenters, shipwrights, victuallers, keepers of inas, taverns, hotels, or coffee-houses, dyers, printers, bleachers, fullers, calenderers, cattle or sheep salesmen; and all persons using the trade of merchandise by way of commission or consignment, or who as agents for others seek their living by buying and selling, or by buying and let ting for hire, or by the workmanship of goods or commodities." Sect. 9. Traders having privilege of parliament may be proceeded against as other traders; but such persons cannot be arrested or imprisoned, except in cases made felony by the act. Sect. 10. So such person not paying or compounding to the satisfaction of the creditor, after personal service of notice of action upon a debt to the amount requisite to support a commission, and also entering an appearance to the action within one calendar month (formerly two), is an act of bankruptcy. Sect. 11. So such member, by disobeying order of any court of equity, or in bankruptcy or lunacy for payment of money after service and peremptory day fixed, commits an act of bankruptcy. Who cannot become Bankrupt.-The addition introduced by second section is, "No common labourer, or workman for hire, or member of or subscriber to any incorporated, commercial, or trading companies, established by charter or act of parliament."

Decisions. All persons whatever, natural-born subjects, aliens, or denizens, being in trade, and capable by law of making binding contracts, may be made bankrupt. Co. B. L. 34. Thus clergymen, though prohibited by statute from entering into trade, Cowp. 745.; public officers, as excisemen, &c., Î Atk. 256. ; lunatics, 13 Ves. 590.; servants of ambassadors, 7 Ann. c. 12 s. 5.; and persons attainted. 14 Ves. 464. Fost. C. L. 61. An infant cannot be made a bankrupt; though where he had traded two years, holding himself out as an adult, the court refused on his petition to supersede the commission. 16 Ves. 265. Nor a feme-covert, except in those cases where she may be sued and taken in execution for her debts, 8 T. R. 545.; as such trader according to the custom of London, 1 Atk. 206. 1 Blk. 570. S Burr. 1776.; or where her husband has become an exile, been transported, &c. Whitm. 5. Nor if a feme-sole trader marries, as the debts then become the husband's. 2 Bro. C. C. 266. What dealing is within the act. The quantum of dealing is immaterial where an intention may be inferred to deal generally, 1 T. R-572, 573. n. 6 Ves. 3. 14 ib. 603. 1 Rose, 84. Holt N. P. C. 441. 1 Price, 20.; as a drawing and redrawing bills and promissory notes, if there be a continuation of it, with a view to profit, that will be sufficient. 1 Atk. 128. IVhat dealing is not sufficient-But a person is not a trader by such occasional acts as a schoolmaster's selling books to his scholars only, Peake, 76.; a contractor for victualling the fleet selling off the surplusage, 1 Vent. 270. ; a colonel of a fencible regiment selling horses occasionally at Tattersell's, 6 Ves. S.; a keeper of hounds buying dead horses, and sellng the skins and bones; 3 Bro. & Bing. 2. 6 Moore, 56. So if a person finds he has bought more of an article than he wants, and sells the residue. 11 East, 276. Nor a milkman who sells his cows as they become unfit for his use. 1 Swanst. 64. 1 Wils. 85. In all cases, the jury are to decide whether there is an intention to deal generally. 3 Stark. 56. Drawing bills on his own account, and paying for their discount with interest, and borrowing accommodation bills, will not make a man a trader, Cowp. 745.; nor a farmer's buying and selling articles incidental to the occupation of his farm. 2 N. R. 78. 2 Rose, 38. 7 Taunt. 409. The doctrine applicable to brickmakers, 1 Bro. C. C. 175. 1 East, 442. 2 Rose, 424. and persons manufac turing alum, Co. B. L. 66. burning lime, 1 Rose, 316. 1 V. & B. 360. or selling minerals from his own quarry, 1 Rose, 377. 1 V. & B. 45. 1 Swanst. 492. Wils. 181. is, that where the business of brickmaking, &c. is carried on as a mode of enjoying the profits of a real estate, it will not make the party liable to the bankrupt law; but where it is carried on substantially and independently as a trade, it will do so: and there is no difference whether the party is a termor, or entitled to the freehold. A buyer and seller of land, or any interest in land, is not a dealer within the act, 2 Wils. 169; and is the principle on which the above cases of mines, stone quarries, &c. have been determined. In the case of a trader ceasing to buy, and selling off his stock, it depends upon whether he intends to exercise or resume his trade, whether he is within the act or not, which question is for a jury. 1 Vent. 69. 166. 2 Keb. 487. Lutw. 411. Palm. $25.

#usually consists, than in lands or tenements. Let us therefore first of all consider, 1. Who may become a bankrupt: 2. What acts make a bank

If an executor buy ingredients merely to make his testator's stock marketable, and then sells the stock, it will not make him a trader; but if he increase the general stock, and continue to sell, he becomes a trader. 1 Atk. 102. Cooke, 67. 2 Esp. R. 88. 10 Ves. 120. 1 Mont. Dig. 15. The illegality of a trade is no objection to a commission, as that of a smuggler, or unlicensed horse-dealer. 1 Atk. 197. 5 B. & A. 516. 1 Price, 20. And it is not necessary that the trading should be in England. Ld. Raym. 375. Salk. 110. Cowp. 398. 1 Atk. 82. 1 Taunt. 270. B. & A. 418. It is sufficient if it be to England. See Cowp. 402. Under the words dealer and chapman, and the general statement that the bankrupt got his living by buying and selling, evidence may be given of any species of trading. 2 Rose, 248. 2 V. & B. 399. 2 Brod. & Bing. 25.

Secondly, Acts of Bankruptcy-Sect. 3. The additional statutable acts of bankruptcy are, If any such trader, being out of this realm, shall remain abroad, or be taken in execution, or make or cause to be inade, either within this realm or elsewhere, any fraudulent grant or conveyance of lands, tenements, goods, or chattels, or make or cause to be made any fraudulent surrender of any of his copyhold lands or tenements, or make or cause to be made any fraudulent gift, delivery, or transfer of any of his goods or chattels. Sect. 4. The execution by a trader of any conveyance or assignment by deed to trustees of his estate and effects, for the benefit of creditors, shall not be an act of bankruptcy, unless a commission be sued out within six months after, provided the trustees execute the deed within fifteen days after the trader, and the executions be attested by an attorney or solicitor, and notice be given within two months after the trader's execution, if he live in London or within forty miles thereof, in the Gazette and two London daily newspapers; if he reside beyond those limits, then in the Gazette, one London daily newspaper, and one provincial newspaper published near to such trader's residence. The notice must contain the date and execution of such deed, and the name and place of abode of each trustee, and such attorney or solicitor. Sect. 5. If any such trader, having been committed to prison for debt, or on any attachment for non-payment of money, shall lie in prison thereon for twenty-one days; or having been arrested or committed to prison for any other cause, shall lie in prison for twenty-one days after any detainer for debt lodged against him and not discharged; or having been arrested, committed or detained for debt, shall escape, it is an act of bankruptcy from the time of the arrest, commitment, or detention; but if any such trader be in prison at the time this act begins to operate, his remaining there two months is an act of bankruptcy. Sect. 6. A trader may make a declaration of his insolvency, signed and attested by an attorney or solicitor, and afterwards to be filed in the bankrupt office, and the secretary or his deputy signing a memorandum thereof is authority for insertion thereof in the Gazette. Upon this act of bankruptcy no commission shall issue, if not within two calendar months after such advertisement, and unless such advertisement be within eight days after such declaration filed; and no docket shall be struck till four days after such advertisement, if the commission is to be executed in Loudon, and eight days if in the country. The Gazette to be evidence of the declaration having been filed. Sect. 7. provides that such declaration being concerted between bankrupt and creditor, or other person, shall not invalidate the commission. Sect. 8. If any person, liable by this act to become a bankrupt, shall after docket struck pay money, or give security, or compound with the creditor or creditors who struck the same, whereby the creditor may receive more in the pound than other creditors, this shall be an act of bankruptcy, and the commission may either be superseded or continued; and every such creditor shall forfeit his whole debt, and return whatever he has received for the benefit of the general creditors.

Decisions. A trader absenting himself, or keeping house with intent to delay creditors, without the fact of delay concurring, is in all cases a sufficient act of bankruptcy, 9 East, 487. as by departing the realm, Cullen, 31. departing from dwelling-house, 15 Ves. 449. 8 Taunt. 671. 3 Moore, 7. or otherwise absenting himself, 2 Esp. 651. I M. & S. 338. 676. as from a place which trader had been in the habit of frequenting, 3 Price, 142. beginning to keep house. 14 Ves. 86. 9 East, 487. 1 Campb. 271. A general order to be denied is proof of beginning to keep house. 2 Bro. & Bing. 388. So is closing the door, and not admitting persons till ascertained who they are from a window, though no actual denial. 1 Bar. & Cres. 55. It is not material whether the denial be to a creditor or other person, 2 T. R. 59. 3 Campb. 349. 2 Taunt. 401. 15 Ves 451.; and it is no objection that at the time of the denial, the trader was seen by the creditor, ib. ; nor that it was at a friend's house, 2 T. R. 59. 1 Ry. & Moody, 58.; or that it was by wife. 2 B. & B. 388. A fraudulent assignment of a trader's effects, in contemplation of bankruptcy, must have been by deed before this act; now it is an act of bankruptcy whether by deed, gift, or delivery. Delivery of goods, &c. must be voluntary. 2 B. & P. 584. 11 East, 260. Lying in prison must be for a real subsisting legal debt. See 1 Montag. Dig. 59. Whitm 31. 1 Christ. 121. Co. B. L. 108. 1 Atk. 147. 2 Ves. 407. A pe-nalty due to the crown is a sufficient debt. 5 B. & A. 516. The time is computed from the first arrest, where the party lies in prison immediately, and the day of arrest is included, 3 East, 407. and the whole of the last day, 3 Stark. N. P. C. 72. or from the day of surrender in discharge of bail 3 Lev. 57. 1 Vent. 270. 1 Burr. 437. 1 Salk. 110. 1 Campb. 509. Detention in custody of an officer in person's own house is sufficient. 4 Camp. 164. 6 Taunt. 106. 1 Marsh. 169. Commission cannot issue till the time of lying in prison has expired, but dockat. may be struck before. 8 T. R. 507. 14 Ves. 80. 1 V. & B. 51. 1 Rose, 333. But delaying VOL. I. 96

rupt: 3. The proceedings on a commission of bankrupt: and, 4. In what manner an estate in goods and chattels may be transferred by bankruptcy.

creditors, without intent to delay, as departing the realm from another motive, 1 Atk. 193. 7 T. R. 509. 5 Ves. 576. I V. & B. 177. 1 Rose, 387. Holt N. P. C. 175. 4 Campb. 286. 1 Stark. 284. an order of denial to a creditor who was supposed to be calling not for money, bet some other object, 3 V. & B. 129. 2 Rose, 87. or if denial can be satisfactorily explained to be on account of sickness, unseasonableness of hour, &c. 1 Rose, 21.; on a Sunday, 1 Atk. 201. 1 Car. N. P. C. 27.; if only to avoid interruption at dinner, 3 Campb. 349. Holt N. P. C. 159; in all these cases there is no act of bankruptcy. But if trader order that he be denied, and is denied, he being ill and incapable of transacting business, it is an act of bankruptcy, for creditor ought to have been told that he was ill. 5 B. Moore, 363. But denial must be connected with previous direction to deny. 1 Campb. 271. 17 Ves 416.

Thirdly, The petitioning Creditor's Debt, and issuing the Commission.-Sect. 12. re-enacts the power of the chancellor, on petition in writing, to issue a commission. Sect. 13. re-enacts 5 Geo. II. c. 30. s. 23. as to the oath and bond of the petitioning creditor; but instead of the “ party grieved" by the taking out of a commission fraudulently or maliciously being redressed on petition, the words are, the party or parties "against whom the commission was so taken out." Sect. 14 provides that the petitioning creditor shall prosecute the commission at his own cost, till choice of assignees, the costs then to be taxed, and paid out of first money received; and enacts, that bills of costs shall be taxed by the commissioners, except so much as relates to any suit in equity or action at law, which shall be settled by the proper officer of the court in which the suitor's action was brought; and any creditor to the amount of 201. may have any such costs and bills settled by a master in chancery on payment of 20s. Sect. 15. re-enacts, that the debt of the petitioning creditor must amount, if it is to one creditor or to one firm, to 100, to two, 150, to more, to 2002.; and further provides, that a debt payable at a future time shall be sufficient, whether he shall have any security in writing or otherwise for such sum or not. Sect. 16. re-enacts, that joint commissions may be issued against partners in a firm, which may be superseded as to one or more without affecting the rest. Sect. 17. re-enacts 3 Geo. IV. c. 8. s. 9. by which, in cases of a second or other commission issuing against any other member or members of a firm, it shall be directed to the same commissioners, who are to convey to the assignees under the first the property of such other members, upon which all separate proceedings under the subsequent commission are stayed, and it is to be annexed to the first, with power to the lord chancellor to direct the commission to other commissioners, or to order that the new, may be proceeded in, either separately, or in conjunction with the first commission. Sect. 18. enacts, that if the petitioning creditor's debt be found insufficient to support the commission, the lord chancellor, upon the application of any creditor or creditors having proved any debt or debts sufficient to support a commission, not incurred anterior to the debt or debts on which the commission was taken out, may order the commission to be proceeded in. Sect. 19. enacts, that no commission shall be invalid by reason of any act of bankruptcy prior to the debt or debts of the petitioning creditor or creditors, or any of them, provided there be a sufficient act of bankruptcy subsequent to such debts.

Decisions.-The creditor is entitled to a commission as a matter of right, 1 Rose, 220. 17 Ves. 512. 1 Mont. Dig. 80. which is not affected by his having any bye object, 5 Madd. 1.; and the lord chancellor cannot stay proceedings before it is opened. 7 Ves. 405. 1 Rose, 150. 290. Issuing is the act of delivering it into the messenger's hands. S Campb. 509. 1 V. & B. 39. May be sealed on same day, if after the act of bankruptcy. 8 Ves. 82. 14 Ves. 87. 1 V. & B. 54. i Rose, 333.

Proceedings on the Commission.-If petitioner wishes the commission to be executed in the country, he must give in the names of commissioners resident in the neighbourhood, and it must be executed within ten miles of the place to which it is issued. 1 Mont. Dig. 637. Country commissions cannot be executed within forty miles of London. A London commission is supersedable for want of prosecution at the end of fourteen days; a country one after twenty-eight days from the date thereof; but the practice is to supersede on the thirtieth, unless on the twenty-ninth notice of adjudication is given before application to supersede is made, 2 Rose, 190. ; but sickness of a commissioner or witness, or the latter secreting himself in collusion with the bankrupt, may take the case out of the general rule, when the intention to proceed is bona fide proved. 1 Rose, 330. 1 V. & B. 34. 2 Rose, 319. 1 Glyn & Jam. 255. The costs of commission so superseded ought not to be paid out of the estate. 1 Rose, 85. If the petitioning creditor do not proceed, and no other creditor supersede it, the court will not allow him to proceed after considerable delay, from suspicion of fraud. 1 Rose, 332. 384. 2 P. Wms. 545. The bankrupt cannot supersede without a petition, 1 G. & J. 43. though others may. A joint commission void as to one, is void against all, 1 Atk. 97. 15 Ves. 113.; as if he be dead at the time it is taken out. Ib. A joint and separate commission cannot exist at the same time, and the last taken out is void. 3 T. R. 123. 4 Ves. 163. 5 Ves. 424. But a joint commission is sometimes taken out after separate ones against all, or some of the firm, and the court exercises a discretion in superseding the separate, and permitting the joint one to be administered, as most beneficial to the estate, 1 Cox, 397. 1 V. & B. 160. in which case petitioning creditor in the first is entitled to his costs out of the joint estate, 1 Rose, 26. 439. 1 V. &B. 60.; and if he be petitioning creditor to the joint commission, he is entitled to all his rights as a creditor in both, and may elect between the joint and several estates. Rose, 453. verdict obtained under separate commission, may be impounded in court for the assignees of the

And s

1. Who may become a bankrupt. A bankrupt was before (b) defined to be "a trader, who secretes himself, or does certain other acts, tending b See page 285.

(2) See further 6 Geo. IV. c. 16. sect. 2. in note (1) ante.

joint commission, till the first is superseded. 1 B. & C. 257. The court may supersede the first, whether the bankrupt has got his certificate under it or not, Buck. 60. ; as where there has been fraud, &c. 2 Cox, 227.; but is reluctant where that has not been the case. 17 Ves. 413. 1 Rose, 89. But where bankrupt has become liable to indictment for not surrendering under the sepa rate commission, the court will neitheir supersede nor impound it. 2 Rose, 378. See 18 Ves. 18. Commissions against uncertificated bankrupts are void at law, 1 Atk. 251. Cowp. 823. 4 Bro C. C. 210. Čo. B. L. 12. 6 Ves. 426. 10 Ves. 54. 15 Ves. 114. 4 Price, 240.; though seems if the prior commission has not been opened, it will not invalidate the subsequent one. 2 Moore, 71. 1 Taunt. 176. But where the second commission was fifteen years after the first, and the bankrupt had been carrying on trade in the mean time, the lord chancellor refused supersede the second, on the application of the petitioning creditor to the first, who was the bankrupt's father-in-law. 16 Ves. 472. See also 16 Ves. 236. 1 Rose, 134. where a similar discretion was exercised, and 15 Ves. 543.

What is a sufficient petitioning creditor's debt.-A creditor to the amount of 100/. in notes, bought in at 10%. in the pound, has a sufficient debt. 1 P. Wms. 782. So though debt has been reduced by invalid payment, 6 T. R. 79; or security, 1 Stark. 262. 5 M. & S. 1., as being after act of bankruptcy; an unliquidated account, 2 Ves. 327.; a sum awarded by arbitrators, though bill be filed to set aside award, 1 Atk. 240. 1 Gow. N. P. C. 17.; an attorney's bill, though not signed and delivered according to the statute. 11 Ves. 163. 16 Ves. 166. 1 Rose, 312. 1 Glyn & Jam. 28. A proceeding upon a judgment, if not against the person, for an unsatisfied debt, is no objection, 4 Esp. R. 194.; debt of a surety is sufficient against him, Palm. 325.; and it seems that an uncertificated bankrupt may petition, if his assignees do not, 2 Rose, 230.; but executor of bankrupt cannot on debt due to testator before his bankruptcy. 1 Atk. 100. If debt arise out of a transaction which is the subject of partnership with the bankrupt, the other partners cannot, if out of other concerns they may. 1 Stark. 144. Testator may before probate, if he obtain valid probate after. 7 Taunt. 147. 2 Marsh. 425. 3 Mad. 241. On promissory note given to wife dum sola, husband may petition alone. 1 B. & A. 218. 1 Glyn & Jam. 1. Factor selling goods in his own name, without a del credere commission, against purchaser, till the principal agrees to consider the debt his, and claims it from the purchaser, 4 Campb. 195.; on bill, though drawn on infant, if accepted at full age, 4 Campb. 164.; and though debtor has been discharg ed under insolvent act, and debt included in schedule. 4 B. & A. 256. Taking security after bankruptcy of higher nature for debt no objection. Stra. 1042. Ca. Temp. Hardw. 267. If debt taken out of statute of limitations by continuances in a court of record, 3 B. & B. 212. 1 Bingh. 324. 6 Moore, 525; debt subsisting, though contracted before party was in trade. Palm. 324. Ld. Rayın. 287. Dougl. 295. 3 Campb. 234. Bond given after quitting trade, for simple contract debt, incurred in trade, will not prevent commission issuing upon it. Peake Rep. 64. A commission may be issued against a drawer of a bill not due, though not accepted, or presented for acceptance. 4 B. & A. 67. Petitioning creditor shall not be presumed to have Ład notice of act of bankruptcy prior to his debt. 3 Stark. N. P. C. 141.

What is not a sufficient petitioning creditor's debt.-Equitable debt, 1 Atk. 147.2 Ves. 407.; as assignee of a bond, 1 P. Wms. 782. Stra. 899.; as joint obligee, 1 Campb. 474. 1 Taunt. 479.; promissory note for contingent debt on marriage settlement, 1 Glyn & Jam. 100.; on cross acceptances unpaid, 4 Taunt. 200.; verdict for damages in tort before judgment, 16 Ves. 256. 14 East, 197.; debt for which debtor is in execution. Stra. 653. 8 T. R. 123. Husband cannot petition alone on debt due to wife dum sola, 1 M. & S. 176.; debt due to infant, 3 Ves. 554. Buck, 42.; debt due to a natural-born subject, voluntarily residing and carrying on trade in enemy's country. 3 B. & P. 113. 3 M. & S. 533. If debt barred by statute of limitations. 15 Ves. 498. 19 ib. 468. 2 Rose, 245. Trader indebted 100%. to creditor on quitting trade, and afterwards 100%. more, then pays off 1001. without saying to which account to be applied, the law applies it to the first, therefore such creditor's remaining debt is not sufficient. Ld. Raym. 287. Peake Rep. 64. If debt incurred after knowledge of act of bankruptcy. Co. B. L. 31. So if after arrest, but before the twenty-one days' imprisonment expire. Whitm. 42. Accep. tance and payment after act of bankruptcy of accommodation bill. 1 Glyn & Jam. 97. If one partner undertake, although fradulently as against the others, to provide for bills of exchange drawn by the firm, and accepted by a third party, such acceptances will not support a commission on the petition of the whole firm. 1 Stark. 202.

Duties of petitioning creditor.-He is pledged to the validity of the cornmission; and where he was required to produce upon a trial a bill of exchange on which the commission issued, and objected, lord Ellenborough said, You cannot with propriety withold the instrument; I cannot however, do more than advise you to exercise a sound discretion on the subject, and it will be for the lord chancellor to deal with the case afterwards accordingly:" the witness then produced the bill. I Stark. 132. See 2 Rose, 188. 386. 1 Glyn. & Jam. 86. But a petitioning creditor in a separate subsisting commission will not be compelled to attend as a witness in support of a subsequent joint commission, being in effect to destroy his own proceedings. 1 G. & J. 7. In a case where the petitioning creditor had, after the choice of as