Petitioning creditor's debt.

titioning creditor's debt, and act of bankruptcy. Rex v. Punshon, 3 Camp. 96.

If all these did not exist, the commissioners could have no authority to administer an oath.

If notice is given, then the assignees must prove a debt due from the bankrupt to the petitioning creditor of 100%. and upwards, a subsequent act of bankruptcy, and a trading by the bankrupt. But all these may be different from those proved before the commissioners.

Mr. J. Buller has said, it is an established rule that assignees must prove the petitioning creditor's debt by the same evidence, which must have been produced in an action against the bankrupt; and it is necessary to recover on a bond, to call the subscribing witness, unless some reason can be shewn for his absence.

In that case, it was decided that the evidence of a witness who proved that the bankrupt had acknowledged the debt was not sufficient, and did not supersede the necessity of calling the subscribing witness to the bond. Abbot v. Plumbe, Doug. 216. 1779.

What Mr. J. Buller has said will be generally true; but it is probable that it will not be universally true. For in this very case the execution of the bond would have been sufficient evidence in an action against the bankrupt. But I conceive it would not be a sufficient petitioning creditor's debt, if the bond were for 500l. if the consideration were only for 50l. or less than 1007. In that case it perhaps might be held in a court of law, that the execution of the bond being proved, the bond itself would be evidence of the amount of the consideration till the contrary was proved. But a voluntary bond could certainly not constitute a good petitioning creditor's debt. Of all the fraudulent practices in bankruptcy that would be the easiest to commit.

In an action of trover by the assignees against the de

fendant, to recover the bankrupt's property, to prove the act of bankruptcy, they produced a bill of sale by the bankrupt to the defendant as a fraudulent grant, and instead of calling the subscribing witness, the plaintiffs produced the defendant's examination before the commissioners of bankrupt, in which he admitted the execution of this deed.

Lord Kenyon and the court held this sufficient evidence, that the very production of the deed by the defendant before the commissioners, made it evidence against him, conformably to what had been decided in R. v. Middlezoy. Bowles v. Langworthy, 5 T. R. 306.1793.

he may prove.

The bankrupt statutes have given the commissioners Bankrupt what no power to examine the bankrupt respecting the act of bankruptcy, though they clearly may examine him respecting his trading, and the petitioning creditor's debt by the 5 Geo. 2. c. 30. s. 16.

But whether in any case the bankrupt can be called either to support or to defeat, by his evidence, the commission in a court of law, is very far from being so settled, or reduced to any clear principle, as could be wished.

But I shall state the few cases in order, which I find upon the subject.

In an action by the assignees, Lord Raymond, Chief J. at nisi prius would not permit the plaintiff to call the bankrupt to prove the petitioning creditor's debt, because it was for his. benefit that the commission should be in force. Cross v. Fox, M. 5 Geo. 2.

Upon an issue to try the validity of a joint commission against Herbert and Eyton, Ch. J. Ryder at nisi prius held that Eyton, who had obtained his certificate, was not an admissible evidence that he and Herbert were joint debtors to the petitioning creditor, or that they were partners, or that Herbert was a bankrupt, for either of these facts tend to support the commission, which must unavoidably be supersed

Bankrupt what ed, if these facts were otherwise; and if this be not a good he may prove. commission, as it will not be, unless it be good against

both, then the certificate will be void, and Eyton in consequence be liable again to his debt, from which his certi ficate would discharge him; for the certificate is a release, which the releasee can never be allowed as a witness to affirm. It is a settled rule, and so agreed on all sides, that a bankrupt, after his certificate is obtained, may be a witness to any thing relating to the bankruptcy, except only to the act of bankruptcy; but then he is not ad mitted directly to support the commission, but to prove other matters. Flower v. Herbert, at Guildhall, 1754. citel 2 Hen. Black. 279.

Chief Justice Eyre and the court of Common Pleas were clearly of opinion that the bankrupt, who had obtained his certificate, could not be admitted to prove the petitioning creditor's debt, or any of the facts neces sary to support the commission. Chapman v. Gardner, 2 Hen. Bl. 279. 1794.

This then extends to the petitioning creditor's debt, the act of bankruptcy, and the trading.

Lord Kenyon admitted the bankrupt to prove a doubt ful act of bankruptcy. Oxlade v. Perchard, 1 Esp. 287But this has been disapproved by Lord Ellenborough and Ch. J. Mansfield, and is directly contrary to Chapman v. Gardiner.

It is remarkable that we have no, decision, nor even dictum, that an uncertificated bankrupt cannot be a wit ness to support his commission.

The cases before Ch. J. Ryder and Ch. J. Eyre were of a certificated bankrupt.

The case before Ch. J. Raymond is general, and the reason is, that the commission is for the benefit of the bankrupt. The commission cannot possibly be for the benefit of the bankrupt unless he obtains his certificate.

he may prove.

The expectation of obtaining it may perhaps operate in Bankrupt what the same way, and create the same disqualifying interest as the apprehension of losing it.

There is no decision that he shall not be called to prove that he has not committed an act of bankruptcy, that he is not a trader, or that he does not owe one hundred pounds to the commissioning creditor. It has, I conceive, been presumed that he has an immediate interest in setting aside his commission, because all his property must be restored to him.

We find that Ch. J. Lee held, at nisi prius, that if the defendant calls the bankrupt, he waives all objections to the competency of his evidence, and he may then be cross-examined as to the requisites to support the commission. Assignees of Gill v. Woodmass, M. 1752. Bull. N. P. 38.

But it is presumed that the defendant can only call him to defeat the commission by the consent of the plaintiff. Or this may mean, if the defendant calls him to prove that he owed no debt to the bankrupt, or retains none of his property, which he certainly may do, then the plaintiff may examine him upon points before doubt

ful.

It was held that no release could make the bankrupt a witness to prove his own act of bankruptcy. Field v. Curtis, 2 Stra. 829. 1729.

No reason is given for this short case, and it is not said by whom it was so held.

This is all I find upon calling the bankrupt to support or to defeat the commission.

As the commissioners cannot examine the bankrupt respecting his act of bankruptcy, it may be inferred that it was not intended that any other court should have that power; but this does not extend to the trading or petitioning creditor's debt.

Bankrupt what he may prove.

The interest a bankrupt has in his certificate, where the validity of it is not in issue, does not satisfy my mind, why he should not prove the petitioning creditor's debt, and his trading, upon giving a full release to his assigThe certificate did not exist till the 4 and 5 Ann. and that was intended as a reward for his honesty, and never was intended to operate as a prejudice to the assignees and creditors under the commission.

nees.

Lord Mansfield has said, "A bankrupt who has not obtained his certificate may be a witness against himself, but not for himself; that is, he may be a witness to decrease the fund, but not to increase it: and in this case his evidence clearly goes to decrease, therefore he is a competent witness." Butler v. Cook, Cowp. 70. 1774.

A bankrupt is not a good witness for the purpose of enlarging the fund, unless he gives a release, and has got his certificate. Ibid.

If he has obtained his certificate and allowance, he cannot be a witness to increase the fund, unless he releases his interest in the surplus.

The bankrupt's evidence in such a case was read, because it was said he was not bound to refund.

Russell, 1 Bro. 269. 1783.

Russell v.

The court, the lords commissioners, in that case, did not recollect his interest in the surplus.

In an action against a bankrupt, who pleads his bankruptcy, and produces his certificate at the trial, the plaintiff may shew that he had before been a bankrupt, and that he had not paid 15s. in the pound under the second commission; and it was sufficient for the plaintiff to produce the commission and the proceedings, and that the defendant submitted to it. Haviland v. Cooke, 5 T. R. 653. 1794.

The court of King's Bench held that a bankrupt, in an