so of one who has brought an earlier petition in bankruptcy.1 Such intervenors may set up all defences which would be open to the debtor himself. An attachment after the proceedings have been begun, and before the decree, is sufficient; but after the title is vested in the assignees, quære. The attaching creditor at that time would stand like any other general creditor.

The tendency of opinion under our late bankrupt law was that any creditor having a provable debt might intervene ; 4 but for this there seems no good reason, as general creditors are fully protected in the bankruptcy.

§ 54. Petitioning Creditor cannot receive Payment. A creditor who has petitioned for adjudication cannot afterwards receive payment of his debt, because the payment would be an unlawful preference. A tender of the amount is therefore no defence, unless there is no other creditor. This rule is general, independent of any statutory prohibition.5

But a creditor is not bound to petition, and his forbearance is a valid consideration for a promise by a third person to pay the debt.6

Scrafford, 14 N. B. R. 184, Fed. Cas. No. 12,557; Re Jonas, 16 N. B. R. 452, Fed. Cas. No. 7442; Re Burton, 9 Ben. 324, Fed. Cas. No. 2214; Ex parte Thoday, 2 Ch. D. 229; affirined, Re Ellis, 2 Ch. D. 797; Re Tucker, 12 Ch. D. 308; Act of 1898, § 59 f.

Fed. Cas. No. 17,061, where the objection was not taken.

5 See Howe v. Warren, 154 Ill. 227; Terhune v. Kean, 155 Ill. 506; Rose v. Main, 1 Bing. N. C. 357; Sterndale v. Hawkinson, 1 Sim. 393 ; Ex parte Jay, L. R. 9 Ch. 133; Ex

1 Re Boston, H. & E. R. R. Co., 9 parte Furber, 6 Ch. D. 181; Ex parte Blatch. 101, Fed. Cas. No. 1677.

2 See note 7, p. 36.

Merriam v. Sewall, 8 Gray, 316; Re Vogel, 9 Ben. 498, Fed. Cas. No. 16,981.

Brigstocke, 4 Ch. D. 348; Ex parte Lowe, 7 Morrell, 25; Re Powell, (1891), 2 Q. B. 324. But a petitioning creditor may take judgment on his debt. Re King (1895), 1 Q. B. 189. And see infra, tit. Preference; Re Sheehan, 8 N. B. R. 353, Fed. Cas. No. 12,738; Re Liverpool, etc. Assn., L. R. 9 Ch. 511. See Drury v. Hounsfield, 11 A. & E. 101; Hollis v. Bryant, 4 M. & G. 578.

4 See Re Austin, 16 N. B. R. 518, Fed. Cas. No. 662; Fogarty v. Gerrity, 1 Sawyer, 233, Fed. Cas. No. 4895; Clinton v. Mayo, 12 N. B. R. 39, Fed. Cas. No. 2899, though in that case the creditor was alleged to have been preferred, which would seem to work an Ecker v. Bohn, 45 Md 278; Ecker estoppel. Re Walker, 1 Lowell, 237, v. McAllister, 45 Md. 290.

Nor is it unlawful for a third person to buy up the debts of an insolvent friend with a view to avert bankruptcy.1

When the duty of the petitioning creditor is dealt with in the act, the cases may turn on the construction of the prohibition.2 § 55. Costs. Since the petition, if granted, has operated for the benefit of the general body of creditors, costs are taxed against the assets, as between solicitor and client.3

§ 56. Withdrawing Petition. By leave of court a petition may be withdrawn before adjudication. But as there is great danger of partiality and preference towards the most troublesome creditors, it has been the practice not to grant leave, either in a voluntary or involuntary case, without notice to all the creditors. In involuntary cases, however, all were presumed to have notice of the return day, and if no one appeared to prosecute it the petition might be dismissed. If not then acted on, it was irregular to dismiss it in vacation.

§ 57. Act of Bankruptcy cannot be condoned. An act of bankruptcy cannot usually be condoned; or, as it is commonly expressed, cannot be purged. Thus, where a trader caused himself to be refused to a creditor, not knowing that it was an act of bankruptcy, and on being informed of its consequences, on the same day went at once and paid the debt before it was overdue, he was held to have been rightly adjudged bankrupt. So where the act is the suspension of commercial paper for fourteen days, payment afterwards is no answer.

1 Robson, 7th ed., p. 227; Fry v. Malcolm, 5 Taunt. 117; Ex parte McHenry, 24 Ch. D. 35.

2 See Ex parte Thompson, 1 Ves. Jr. 157; Ex parte Gedge, 3 Ves. 349; Ex parte Paxton, 15 Ves. 461; Ex parte Kirk, 15 Ves. 464; Ex parte Brine, Buck, 19, 108; Ex parte Masterman, 18 Ves. 298; Ex parte Smith, 1 Rose, 147.

3 Re Williams, 2 N. B. R. 83, Fed. Cas. No. 17,704; Re Moses, 3 N. B. R. 1; Re Schwab, 2 N. B. R. 488, Fed. Cas. No. 12,498; Re Montgomery, 3 N. B. R. 137, Fed. Cas. No. 9726; Re Dibblee, 3 N. B. R. 754, Fed. Cas. No.

3886; Re N. Y. Mail Co., 3 N. B. R. 627, Fed. Cas. No. 10,208; Ex parte Jaffray, 1 Lowell, 321, Fed. Cas. No. 7170. Approved by Bradley, J., Trustees v. Greenough, 105 U. S. 527, 534. Act of 1898, § 64 b (2), (3).

4 Re Randall, 5 Law Rep. 115, Fed. Cas. No. 11,550; Hastings v. Belknap, 1 Denio, 190.

5 Act of 1898, § 59 g.

6 Ex parte Gardner, 1 Ves. & B. 45; Wydown's Case, 14 Ves. 86; Robson v. Rolls, 9 Bing. 648; Lloyd v. Heathcote, 2 Brod. & B. 388; Hammond v. Hincks, 5 Esp. 139; Robertson v. Liddell, 9 East, 487; Williams. Nunn, 1 Taunt.

One reason for these decisions is that the act, when once complete, may be taken advantage of by any creditor, and to pay or compound with one is illegal.

$58. Refusing or annulling Adjudication on Equitable Grounds. - Notwithstanding the rule that an act of bankruptcy cannot be purged, the Lord Chancellor, when he had the jurisdiction, and the courts since vested with it, have often stayed the proceedings for equitable reasons, though an act of bankruptcy had been committed. In Massachusetts a statute has given this power to the courts of insolvency.1

The most usual ground for such action by the court has been that some improper motive, such as to force a payment or a dissolution of a partnership, was at the bottom of the proceeding.2 Accident or mistake, however, would probably be enough. The practice has been to apply by special petition rather than to oppose the adjudication; but there is no reason at the present time why equitable defences should not be set up in the courts of bankruptcy. Many cases have been stayed for legal reasons, such as that no act of bankruptcy was committed, or that all the debts have been paid or compromised.*

§ 59. Duties and Liabilities of Petitioning Creditor. When bankruptcy proceedings were begun only by creditors, and were ex parte, the law required the petitioning creditor to give

270; Harvey v. Ramsbotton, 1 B. & C. 55; Hallen v. Homer, 1 C. & P. 108; Fox v. Eckstein, 4 N. B. R. 373, Fed. Cas. No. 5009; Mendenhall v. Carter, 7 N. B. R. 320, Fed. Cas. No. 9426. See, per Knowlton, J., Marble v. Jamesville Mfg. Co., 163 Mass. 170, 180; Wrenche's Case, Cro. Eliz. 13; Hopkins v. Ellis, Salk. 110; Colkett v. Freeman, 2 T. R. 59; Mucklow v. May, 1 Taunt. 479; Re Ess, 3 Bissell, 301, Fed. Cas. No. 4530.

1 Stat. 1894, c. 139.

2 Ex parte Browne, 1 Rose, 151; Ex parte Harcourt, 2 Rose, 203; Ex parte Gallimore, 2 Rose, 424; Ex parte Bowes, 4 Ves. 168; Ex parte Bourne, 2 Gl. & J. 137; Ex parte Christie, 2 Dea. & Ch.

465, 488; Ex parte Kemp, 1 M. D. & De G. 657; Ex parte Johnson, 2 M. D. & De G. 678; Re Gold Hill Mines, 23 Ch. D. 210; Re Atkinson, 9 Morrell, 193; King v. Henderson, 79 L. T. 37, (1898) A. C. 720. See Re Painter, 1 Manson, 499; Re Otway (1895), 1 Q. B. 812.

3 Re Davies, 3 Ch. D. 461; Ex parte Tynte, 15 Ch. D. 125.

4 English Bankrupt Act, 1883, § 35. [In England a receiving order will not be granted if there are no assets. Re Robinson, 22 Ch. D. 816; Re Betts (1897), 1 Q. B. 50; Re Somers, 4 Manson, 227. See Re Murrieta, 3 Manson, 35; Re Birkin, ib. 291; Re Leonard (1896), 1 Q. B. 473; Re Jubb (1897), 1 Q. B. 641.]

a bond in £200 conditioned to prosecute the commission, and to prove both before the commissioners and in an action at law, if the commission should be contested, that he was a creditor, and that the debtor was a bankrupt within the true intent of the statutes.1

In case of breach, the statute authorized the Lord Chancellor to assess the damages, or to permit the bond to be put in suit. It was discretionary with him to refuse to do either, if justice did not seem to require it; or if the debtor had chosen another remedy, such as an action for malicious prosecution.3

Since the proceedings are no longer ex parte, there is no occasion for security from the petitioning creditor, except when it would be required of any other plaintiff. The statutes do not now, nor does the practice, require a bond, unless when an ex parte injunction or warrant is asked for in aid of the proceedings.

§ 60. Malicious Prosecution of Bankruptcy. - If one with malice, and without reasonable and probable cause, presents a petition in bankruptcy against another, he is liable to an action.5

When this point was first decided, the proceedings were ex parte, and an order so granted was no evidence of probable cause. Since the petition is now addressed to a court of full jurisdiction, and an adjudication is after notice, no such action could be maintained if the court made an adjudication, unless the defendant had procured the decision by false and fraudulent evidence.7

It was doubted by Martin, B., whether such an action could lie in any case, but the better opinion is that if the petition has been dismissed, and was brought with malice, and without reasonable and probable cause, the petitioner is liable.9

As in other cases of malicious prosecution, the action cannot be sustained unless the proceedings have been dismissed or discontinued; but the dismissal does not per se prove want of probable cause.2

Want of probable cause is evidence of malice to be considered by the jury; but malice does not prove want of probable cause.3

In the case of a trader, special damage need not be averred, because it is so plain as to be held, as a matter of law, that a trader's credit will be injuriously affected by such a petition.4

It has been held that whether the petitioner creditor is a creditor in fact is a question which he must decide at his peril, and if he is not, there is, in law, a want of probable cause. But this may be doubted. It would seem that, like many other points, this should depend upon what a man might reasonably believe."

1 Matthews v. Dickinson, 7 Taunt. 399; Whitworth v. Hall, 2 B. & Ad. 695; Metropolitan Bank v. Pooley, 10 App. Cas. 210.

2 Hay v. Weakley, 5 C. & P. 361. See Cotton v. James, 1 B. & Ad. 128.

544; Sonneborn v. Stewart, 2 Woods, 599, Fed. Cas. No. 13,176.

4 Metropolitan Bank v. Pooley, 10 App. Cas. 210.

Sonneborn v. Stewart, 2 Woods, 599, Fed. Cas. No. 13,176.

Metropolitan Bank v. Pooley, 10

3 Johnstone v. Sutton, 1 T. R. 493, App. Cas. 210.