as by attending the meetings under the reference, and making no objection thereto (b). A bankrupt may be discharged under the Insolvent Debtors' Act, notwithstanding a fiat in bankruptcy has issued against him subsequently to his arrest, upon inserting an assignment in his schedule of all his estate, title, and interest in the property assigned, subject to the fiat and payment of his debts under it (c).

11. Bankruptcy does not disqualify a person from being elected a councillor under the Municipal Corporation Act, although he has not obtained his certificate, if he is rated to the relief of the poor, as required by the 28th section of that statute; but it does disqualify the bankrupt from holding the office, if bankruptcy occur after his election (d).

Actions, &c. by or against him.] First: he may petition, in all matters relating to his bankruptcy, in which he has a direct interest; as, for instance, to annul the fiat (ante, p. 333); to enlarge the time for his surrendering (ante, p. 262), or the like; or, in respect of the allowance (see p. 412, ante), or of the surplus of his estate (p. 411, ante). And we have seen that by 1 & 2 Will. 4, c. 56, s. 17, (p. 331, ante), he may dispute his adjudication by application to the Court of Review.

2. Although uncertificated, he may maintain an action for the value of his personal labour performed since the issuing of the fiat (p. 414); or with relation to his after-acquired property, if his assignees do not interfere (ante, p. 414). Or he may bring an action against any person who had seized his goods, or taken possession of his house, &c. under the fiat, or against them by whose direction it has been done, in order to try the validity of the fiat (e); but if the bankrupt so far acquiesces in the fiat, as to canvass the creditors to vote for particular persons as assignees, he would be estopped from questioning the validity of the fiat, in an action against these assignees for money had and received (ƒ) ; but soliciting the appointment of an official assignee is not such an acquiescence as to bar the bankrupt's right to dispute the fiat by an action against such official assignee for money had and received by him as official assignee; for the appointment is for the protection of the property (g). And the bankrupt cannot contest the validity of the fiat, after obtaining his discharge out of custody by reason of it (h). And where a bankrupt had abandoned a petition for a supersedeas, and joined in a conveyance of part of his property, and solicited and procured the requisite number of signatures to his certificate, the Vice-Chancellor, upon petition, restrained him from proceeding in an action which he had brought

(b) Dodd v. Herring, 3 Sim. 133; S. C. on appeal, 1 Russ. & M. 153.

(c) Nunney v. Hall, 8 Moore, 423. (d) Rex v. Chitty, 1 Nev. & P. 78; 5 Adol. & E. 609.

(e) See Bryant v. Withers, 2 M. & S. 123, 131: Donovon v. Duff, 9 East,

(f) Like v. Howe, 6 Esp. 20.

(g) Munk v. Clark, 2 Scott, 475; 2 Bing. N. C. 299.

(h) Goldie v. Gunston, 4 Camp. 381: Watson v. Wace, 5 B. & C. 153, 2 Car. & P. 171: but see Mott v. Mills, 3 Car. & P. 197.

against the messenger to impeach the commission (i). But although the bankrupt had assisted the assignees in giving directions as to the sale of the goods, and had also given notice to the lessors of his farm that he had become bankrupt, and was willing to give up the farm, and, in consequence, the lessor had received the lease, and accepted possession of the premises: it was held that he could nevertheless maintain an action against his assignee to invalidate his commission, for his interference in the sale of his property was referable to his desire to take care of his property, and the surrender of his lease was not an act to which the assignees were either parties or privies (k) (and see p. 332, ante). Ă bill filed by a bankrupt against a debtor to his estate, on the ground of the invalidity of the commission, and of collusion between the assignees and the debtor, was holden bad on demurrer; the proper course being to bring an action to try the validity of the commission, or to petition to remove the assignees (1). And if before the bankruptcy a warrant of attorney is given to enter up judgment in the name of the bankrupt, to secure a debt on bond, the assignee may sue on the bond in his own name, or avail himself of the warrant of attorney in the name of the bankrupt; and if an action on the judgment entered up is brought by the bankrupt, the court will intend it as for the benefit of the estate, and a plea of the bankruptcy of the plaintiff, and the pendency of another action by the assignees, is no defence; the remedy is by bill of interpleader (m); and the court will not require security for costs from a bankrupt. (See p. 362, ante.) In an action by the bankrupt for maliciously suing out a fiat, it must be averred and proved that the fiat was annulled before action commenced, or he must be nonsuited, though the defendant could have demurred for the omission, but neglected so to do (n).

3. In actions against the bankrupt, for any cause of action barred by the certificate, he may, by stat. 6 Geo. 4, c. 16, s. 126, "plead in general that the cause of action accrued before he became bankrupt, and may give this Act and the special matter in evidence; and such bankrupt's certificate, and the allowance thereof, shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate." (Ante, p. 298). As to what causes of action are barred by the certificate, see ante, p. 295, 96–148. This general plea of bankruptcy must pursue the words of the statute, and conclude to the country (0), and can be pleaded only in cases where the bankruptcy happened before the commencement of the action (p), and the certificate was obtained before plea pleaded (q). But where both the bankruptcy and certificate are after action brought, the plea must be special. So, where a surety brings an action for money paid

(i) Er p. Cutten, 1 Glyn & J. 317. (k) Hearne v. Rogers, 4 Man. & R. 486; 9 B. & C. 576.

(1) Hammond v. Atwood, 3 Mad. 158. (m) Guinness v. Carroll, 1 B. & Adol.

459.

(n) Whitworth v. Hall, 2 B. & Adol.

695.

(0) Sheen v. Garratt, 4 Moore, 525. (p) Tower v. Cameron, 6 East, 413: see Charlton v. King, T. R. 156: Pearson v. Fletcher, 5 Esp. 90.

(q) Harris v. James, 9 East, 82.

by him after the issuing of the fiat, the plea must be special (r). So, if the cause of action be barred by the certificate, but the certificate not obtained until after plea pleaded, it must be pleaded specially puis darrien continuance. The certificate, however, can never be given in evidence under the general issue (s). And in such case, the court in which the action is brought will, before judgment, stay proceedings in the action, but exercising its discretion as to the costs (t). As to the cases in which a certificate obtained in a foreign country may be set up as a defence to an action, see ante, p. 295.

There are some acts which render the certificate void, (as mentioned ante, p. 290, &c.). These may be given in evidence under the similiter to the general plea of bankruptcy; for, as the general plea concludes to the country, a special replication to it would be bad, at least on special demurrer (u). But where the bankruptcy is pleaded specially, they must be made the subject of a special replication. If the plaintiff, after joinder in demurrer, become bankrupt and obtain his certificate, and the assignees decline to continue the action, the court in which the action is brought, will not order the bankrupt to give security for costs (x). Where the plaintiff sued for breach of contract, in not paying for books by giving Bills of Exchange for the price, the defendant having become bankrupt, the plaintiff in the action proved the price of the books under the fiat and received a dividend; it was held that this was not within 6 Geo. 4, c. 16, s. 59, for the debt proved was of the price the books and not the damages for not giving the bills, and therefore that the defendant in the action having obtained his certificate, was entitled to proceed to trial by proviso (y). Where the petition of the bankrupt to supersede was dismissed on the ground of an action then pending by him, the court, on motion, allowed the affidavits filed in reply to the petition to be taken off the file and delivered to the attorney of the bankrupt, to be used on the trial of the action; the attorney putting office-copies on the file in the meantime, and undertaking to return the originals in their present state (z).

Death of Bankrupt.] If the bankrupt die before adjudication, the fiat cannot proceed (a), and the fiat is void, without any order to annul (b). But if he die after adjudication, the commissioners may proceed in the fiat as they might have done if he were living. (6 Geo. 4, c. 16, s. 26, ante, p. 84). Where he had presented a petition to supersede the commission, and died before he had surrendered, and the petition was revived by his personal representatives, the court thought, that as the surrender was prevented by the act of God, the same order should be made as if he had actually

(r) Stedman v. Martinnant, 12 East, 664.

(8) Gowland v. Warren, 1 Camp. 363. (t) Sadler v. Cleaver, 7 Bing. 769. (u) Wilson v. Kemp, 2 M. & S. 549: Hughes v. Morley, 1 B. & A. 122.

(x) Beckham v. Knight, 6 Dow. 227; 5 Scott, 336.

(y) Whitaker v. Mason, 6 Dow. 429.
(z) Ex p. Whalley, 1 Mon. & A. 634.
(a) Ex. Beale, 2 V. & B. 29.
(b) Ex p. Green, 1 Dea. & C. 230.

surrendered (c). And the bankrupt dying either before or after the declaring a dividend sufficient to entitle him to an allowance, the right vests in his personal representative (d).

SECTION 20.

The Creditor.

Ir a creditor prove his debt, he is entitled to his proportion of the net produce of the bankrupt's estate, so far as it goes (ante, p. 300), and to interest, if there be a surplus (ante, p. 411). And the only instances of priority of debts known to the bankrupt laws are, the case of the landlord who distrains for his rent (ante, p. 114); the case of creditors who hold securities for their debts (see ante, p. 131, &c.); in the case of friendly societies (ante, p. 241): in all other cases, all creditors who prove under the fiat are entitled to equal dividends of the effects, whether their debts be by specialty or simple contract merely. (See ante, p. 301, &c.). By 6 Geo. 4, c. 16, s. 8, a creditor receiving from the bankrupt, after a docket struck against him, money, satisfaction or security for more in the pound upon his debt than the other creditors, shall forfeit his debt, and return the money, security, &c. (See p. 63, ante).

But if a creditor do not prove his debt under the fiat, he is barred altogether of any remedy as against the bankrupt, if the latter obtain his certificate; but if the bankrupt be uncertificated, he may at any time have the ordinary remedies against his person or future property.

A creditor attending to prove his debt is privileged from arrest. (Ante, p. 154).

A creditor may petition in all matters relating to the bankruptcy, in which he has an interest. (Ante, p. 340). His remedy for his dividend is by petition, not action. (Ante, p. 306).

If he swear falsely to a debt, he may be indicted and convicted of perjury. (See ante, p. 31).

(c) Ex p. Whittington, Buck, 235.

(d) Ex p. Safford, 2 Glyn & J. 128.

420

CHAPTER II.

OF PARTNERS; AND HEREIN, OF JOINT AND SEPARATE FIATS.

FIATS against all or one or more of the partners in a firm, and the proceedings upon such fiats, shall form the subject of the present Chapter.

Act of Bankruptcy.] Those only of the partners who have actually committed acts of bankruptcy are to be deemed bankrupts. Where one of three partners in a bank, who resided at it, (the other two residing at a distance from it), ordered it to be shut up and absented himself from it, and the bank stopped payment; this was holden to be evidence of an act of bankruptcy by the resident partner only, for the shutting up of the bank, and the stopping payment, are not of themselves acts of bankruptcy (a). As to what are acts of bankruptcy, see ante, p. 47—65.

Petitioning Creditor's Debt.] None but a joint creditor can sue out a joint fiat against two or more partners of a firm; a separate creditor cannot.

But a joint creditor may sue out a separate fiat against any one of the partners of the firm indebted to him, who has committed an act of bankruptcy (b). Even one of the partners of a firm may sue out a fiat against his co-partner, if his debt have not arisen out of the partnership (c), otherwise not (d), unless upon an account settled (e).

As to who are joint creditors, who separate, vide infra, Proof of Debts.

Fiats.] A joint fiat may be sued out against all or some of the members of a firm, or a separate fiat against one or each of them. Formerly, a joint fiat could not be sued out against some of several members of a firm; it must have been sued out against all the ostensible partners (f). But now, by stat. 6 Geo. 4, c. 16, s. 16, any creditor or creditors whose debt or debts is or are sufficient to entitle him or them to petition for a commission against all the partners of any firm, may petition for a commission against one or more partners of such firm; and every commission issued upon such petition shall be valid, although it does not include all the partners of the firm.

(a) Mills v. Bennet, 2 M. & S. 556. (b) Crispe v. Perritt, Willes, 467: Er p. Crisp, 1 Atk. 134: Er p. Dewdney, 15 Ves. 499: Ex p. Ackerman, 14 Ves. 604; and see post.

(c) Windham v. Paterson, 1 Stark.