mit his proof alone without a special order from the chancellor.

Conway and Co. paid the debt, as a surety after the If a debt is bought, how it bankruptcy of Lloyd, in consequence of which the bank- is to be proved. rupt became indebted to them, and they as his surety by 49 Geo. 3. c. 121. s. 8. were entitled to prove under his commission. Conway and Co. sold or assigned their debt. Lord Eldon is made to say, that the purchaser, when he advanced the money, purchased all their remedies and advantages, and therefore he is entitled to prove in their names. Exparte Lloyd, I Rose, 4.

I cannot but suspect that the reporter has misconceived what Lord Eldon said; or the Lord Chancellor, if he so expressed himself, said this inadvertently. There is no instance of one man swearing in the name of another. It seems to be the common case of assignor and assignee.

But the chancellor might think from the affidavits before him the assignee might prove alone. I humbly conceive in such a case he must prove in his own name, but under a special deposition stating all the circumstances, and then in his own name he would exercise all the rights of a creditor.

So a trustee and a cestui que trust, ought to join, and Trustees. the trust deed ought to be exhibited.

If there are more trustees than one they ought all to

join, as they ought all to join in giving a discharge.

So also a bankrupt and his assignees ought to join in the Bankrupt and his assignees. proof: that has always been the practice; and they ought to join in signing the certificate; for each party has an interest in the increase of the dividends.

It is not an unfrequent practice in the country for assignees of a bankrupt to sue out a commission against a deb tor of the bankrupt without joining their bankrupt.

The assignees alone have the same remedy fully and

VOL. II.

Assignees ought not alone to sue

sion.

lawfully in all respects and purposes to recover a debt, which the bankrupt had by 1 Jac. c. 15. s. 13.

But it may, I think,be justly doubted, whether they are out a commis- creditors within the meaning of the 5 Geo. 2. c. 30. s. 23. who are to petition and make an affidavit of the truth and reality of their debts. It will be difficult for them to make the affidavit without the assistance of the bank. rupt.

Executor.

Bankrupt proving under his own commiz

sion.

Assignees frequently do it; the subject has never yet attracted the notice of the chancellor or a court of law.

If assignees in an action intend to arrest the debtor, the bankrupt must join with them in the affidavit of the debt; and the bankrupt's affidavit alone will not be suficient. Smith v. Barclay, 3 Bos. and P. 219.

Lord Hardwicke declared" that an executor as he acts in autre droit, being a bankrupt, does not take away the right of executorship, and therefore strictly he may be the proper hand to receive it; but however in such a case I ought to secure the effects of the testator, and therefore I will appoint a receiver to whom the assignees of this commission shall account, for so much as they have got in of Hughes's testator's assets." Exparte Ellis, 1 Atk. 101. 1742.

The bankrupt was an executor. Upon the petition of a creditor of the testator, the bankrupt was permitted by Lord Thurlow to prove the debt under his own commis. sion; but the assignees were ordered to pay the divi dends into the bank till further order. Exparte Leeke, 2 Bro. 596. 1789.

Where two, Shakeshaft and Kempson, were executors in trust for others, and the two executors sold out stock belonging to the testator, 2000l. 3 per cents, which Kempson permitted Shakeshaft to apply to his own use, Shakeshaft died insolvent, and Kempson became a bankrupt.

!

Lord Thurlow said, it was in a rule in equity, that Trustees how where a trustee had made use of a trust fund, he might be to account. compelled either to replace the fund, or to account for what he had made of it, at the election of the cestui que - trust; and he ordered that the legatees or cestui que trust might be permitted to prove the price of the stock at the time of the bankruptcy (it having risen,) and the assig nees were to pay the dividends into the bank, subject to further others. Erparte Shakeshaft, 3 Bro. 197. 1791. When the executorship was disputed in the ecclesias- Dividends paid tical court, and one of the executors became a bankrupt who was indebted to the testator, the other executor was admitted to prove the debt, but the dividends were to be paid into the bank till further order. Erparte Shakeshaft, 3 Bro. 198. 1791.

In cases where the bankrupt is an executor or administrator, and has mixed the testator's or intestate's estate with his own, the commissioners ought not to admit the proof, but refuse, that there might be an application to the chancellor, who will make a special order according to the circumstances of the case In some cases the chancellor might think it proper that the assignees should join with him in the proof, for if the chan cellor orders him to prove alone, the commissioners must of course afterwards permit him to sign his own certificate.

Proof by sureties, See 49 Geo. 3. 121. s. 8.

Proof of debts not payable at the time of bankruptcy, See 49 Geo 3. c. 121. s. 9.

Executory contracts. See the same.

Proof of Rent, See 49 Geo, 3. c. 121. s. 19.

Proof of the value of annuities, See 49 Geo. 3. c. 121.

8.17.

into the bank.

Mutual debts and credits

may be set of notwithstand

ing a secret act of bankruptcy.

46 Geo. 3. c. 135. s. 3.

And be it further enacted that in all cases in which, under commissions of bankrupt hereafter to be issued, it shall appear that there has been mutual credit given by the bankrupt, and any other person, or mutual debts between the bankrupt and any other person, one debt or demand may be set off against another,notwithstanding any prior act of bankruptcy committed by such bankrupt before the credit was given to, or the debt was contracted by, such bankrupt, in like manner as if no such prior act of bankruptcy had been committed, provided such credit was given to the bankrupt two calendar months before the date and suing forth of such commission, and provid ed the person claiming the benefit of such set-off had not, at the time of giving such credit any notice of any prior act of bankruptcy by such bankrupt committed; or that he was insolvent or had stopped payment: Provided always, that the issuing of a commission of bankrupt against such bankrupt, although such commission shall afterwards be superseded, the striking a docket for the purpose of issuinga commission against such bankrupt, whether any commis sion shall have actually issued thereupon or not, shall be deemed notice of a prior act of bankruptcy for the purposes of this act, if it shall appear that an act of bankruptcy had been actually committed, at the time of issuing such commission or striking such docket.

No case, which I have seen or heard of has yet been decided under the first part of this section.

Lord Ellenborough held, at nisi prius, that if a commission were sealed, though it was afterwards superseded without being opened, it was notice of an act of bank

ruptcy under this statute. Watkins v. Maund, 3 Camp.

308.1812.

It is expressly so declared by the statute.

I should think the meaning of this part of that section is this, viz. where there is an act of bankruptcy and a commission sued out, even if the commission is superseded, then that act of bankruptcy shall have precisely the same effect and operation as it would have done, if this act of parliament had never been passed.

The following case upon the general law of balancing accounts in bankruptcy, may be inserted here.

All the partners of the Pontefract Bank became bank rupts but one. The solvent partner, and the assignees of each bankrupt, brought an action against a debtor of the partnership. His defence was a set-off. It appeared that the notes he endeavoured to set off, were purchased by him at an undervalue after the bankruptcy of the bankrupts.

The court of King's Bench held that they could not be set off. The effect was the same in the case of balancing a debt in bankruptcy, if a bill or note was received after the bankruptcy of one of the partners, as if it had been received after the bankruptcy of all.

It is an important case. It is not yet reported. But an action might have been brought upon these bills against the solvent partner and the bankrupts.

46 Geo. 3. c. 135. s. 4.

shall discharge

IV. And be it further enacted, that all persons against Certificates whom any commission of bankrupt shall hereafter issue, bankrupts from and who shall be duly found bankrupts under the same, under this stashall upon obtaining his, her, or their certificate be dis- tute.

debts provable