change, or promissory note, given to the wife dum sola, the husband may alone petition, for the right of the action, shifting with the possession of the bill, vests by marriage in the husband: M'Neilage v. Holloway, 1 B. & A. 218; ex. p. Barber, 1 G. & J. 1. Proof of a debt due to an infant is not sufficient to support a commission, ex. p. Barrow, 3 Ves. 554, ex. p. Morton, Buck. 42, nor is a debt contracted by an infant; but proof of an acceptance after he came of age upon a bill drawn when he was an infant, was holden to be a good petitioning creditor's debt: Stevens v. Jackson, 4.Camp. 164. Though a public company have power by statute to commence all actions and suits" in the name of their secretary, as the nominal plt., this does not enable the secretary to petition for a commission: Guthrie v. Fisk, 3 B. & C. 178; 5 D. & R. 24. Proof of the debt of a factor, selling goods in his own name, is sufficient to support a commission against the purchaser; but not so if it appear that, by agreement between the principal and factor, the former was to consider the purchaser as his debtor, as, by the intervention of the principal, the right of the factor was gone: Sadler v. Leigh, 4 Camp. 164. The debt of a natural-born subject, residing and trading in an enemy's country, will not support a commission: M'Connell v. Hector, 3 B. & P. 113. The mere residence, however, will not affect the debt, if it do

not appear that it was for the purpose of trading, and that the [*213] creditor went there *with a knowledge of the existing hostilities: Roberts v. Hardy, 3 M. & S. 533; nor will the debt be invalidated if the creditor reside there under a license granted by order in council: ex. p. Baglehole, 18 Ves. 525; 1 Rose, 271. An uncertificated bankrupt, ex. p. Cartwright, 2 Rose, 230, an insolvent debtor, Jellis v. Mountford 4 B. & A. 256, may, in most cases, be a petitioning creditor. An executor of a bankrupt cannot sue out a commission on a debt due to his testator before his bankruptcy: 1 Atk. 100.

The debt must be a present existing debt, and not one depending on a contingency: Deacon, B. L. 90; ex. p. Page, 1 G. & J. 100; sce post. A warrant of attorney has been deemed a debitum in presenti, sufficient to support a commission, though given as a security against running acceptances: Miles v. Rawlyns, 4 Esp. Rep. 194. The debt should be of a liquidated nature, or capable, from computation, of being liquidated: see 2 Ves. 326; 4 Ves. 168. A mere verdict for damages in an action for breach of promise of marriage or tort, does not constitute, before judgment, a sufficient petitioning creditor's debt: ex. p. Charles, 14 East, 197; 16 Ves. 257; recognized in Walker v. Barnes, 1 Marsh. 346, and Scott v. Ambrose, 3 M. & S. 362. A sum awarded by an arbitrator will support a commission against the person who is awarded to pay it, notwithstanding a bill is filed to set aside the award: ex. p. Lingood, 1 Atk. 241. Proof of a surety debt will support a commission against the party liable on it, Hughes v. Hall, Palin, 325; but a security for a contingent debt will not be sufficient, though given in the form of a present debt: ex. p. Page, 1 G. & J. 100. A penalty due to the crown is a sufficient debt to support a commission, Cobb v. Symonds, 5 B. & A. 516; so, also, is an assessment for church and highway rates; and the assessor would be a good petitioning creditor: Lloyd v. Heathcote, 2 B. & B. 388.

The debt must be proved to have been contracted, or to have subsisted, while the party was a trader: Dawe v. Holdsworth, Pea. Rep. 64; Megott v. Mills, 1 Ld. Raym. 287; 12 Mod. 157, s. c. If a simple contract debt is contracted whilst the party is in trade, though he gives the creditor a bond for it after leaving off trade, this will not extinguish the debt, so as to prevent the creditor from suing out a commission on it: Pea. 64. But, if a trader, indebted in £100, quit his trade, and afterwards become indebted to the same creditor in £100, more, without saying on what account, the creditor in this case cannot take out a commission upon the old debt: 1 Ld. Raym. 287; Pea. Rep. 64.

The debt must be proved to have been contracted before, and subsist ing at the time of, the act of bankruptcy, Clarke v. Askew, ib., 458, n. though, if the existence of the debt be proved before the act of bankruptcy, it will be presumed to be still in existence when the act was committed: Jackson v. Irwin, 2 Camp. 50. The date of a promissory note is prima-facie evidence of the existence of a debt before the act of bankruptcy, Taylor v. Kinlock, 1 Stark. 175; but this has since been doubted, 2 ib. 594, 2 Stark. Ev. 161; and, where the petitioning creditor is endorsee of a bill, the endorsement itself must be proved to have been before the act of bankruptcy, no presumption arising from the date of the bill: Rose v. Rowcroft, 4 Camp. 245. In a case where it was necessary to prove a good petitioning creditor's debt on the 20th May, it was held not sufficient to show that, on the 20th Jan. preceding, a sum of £700 was due from the bankrupt; there being subsequent receipts. and payments, and other continuing transactions, between the petitioning creditor and the bankrupt; for, after a period of three months, it was considered impossible to say, under these circumstances, whether £1000 or £5 were really due: Gressly v. Price, 2 C. & P. 48.

The debt must be complete and perfect before the act of bankruptcy. A verdict in an action for a tort is insufficient, unless a judgment thereon be entered before the act of bankruptcy: ex. p. Charles, 14 East, 197; 16 Ves. 256, supra. Where the act of bankruptcy is founded on a lying in prison, and the debt was contracted after the [*214] arrest, it was holden insufficient: ex. p. Daggett, Whitm. B.

L. 42. It will not be a good debt if the credit given be unexpired at the time of the bankruptcy, Hoskins v. Duperoy, 9 East, 498, 6 Esp. Rep. 55, s. c., Parslow v. Dearlove, 4 East's Rep. 438, Sarratt v. Austin, 4 Taunt. 200; but see Henbest v. Brown, Pea. Rep. 75; unless, in pursuance of 7 Geo. 1, c. 51, and 5 Geo. 2, c. 30, a written security be given for the payment. Upon a sale of goods at six or nine. months, the purchaser, by not paying at the end of six months, makes his election to take credit for the nine months; and the debt will not be sufficient to support a commission till the nine months are expired: Price v. Mixon, 5 Taunt. 338. So, a vendor of goods, to be paid for by a bill at four months, cannot sue out a commission till a bill has been given, or the expiration of the four months, Cothay v. Murray, 1 Camp. 335; though, where goods were sold to be paid for by a present bill, it will be presumed that a bill was given at the time: Hoskins v. Duperoy, 9 East, 498; 6 Esp. Rep. 55, s. c. A bill of exchange is a debt VOL. I.

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from the date of it, and is sufficient to support a commission before the day of payment, Macarty v. Barrow, Str. 946, Bingley v. Maddison, Co. B. L. 28, Glaister v. Hewer, 7 T. R. 498, Anon. 2 Wils. 135, ante, 213; and, in the hands of an endorsee, it will be a good debt, though the endorsement be made after the act of bankruptcy; but it must be proved to have been made before suing out the commission: ib., ibid.; Rose v. Rowcroft, 4 Camp. 245. The acceptor of an accommodation-bill, paying the amount after an act of bankruptcy, has not a sufficient petitioning creditor's debt, ex. p. Holding, 1 G. & J. 97; nor, where there is an exchange of acceptances between two persons, and, before the maturity of the bill, one of them commits an act of bankruptcy, can the other prove under the commission, till he has paid his own bill: Sarratt v. Austin, 4 Taunt. 200. We have seen that a bill of exchange drawn upon an infant, and accepted by him when he came of age, is sufficient to support the commission: Stevens v. Jackson, 4 Camp. 164, ante, 212. Where a bankrupt drew a bill in favour of A., to whom he was previously indebted, and committed an act of bankruptcy before either the bill was due, or had been presented for acceptance, it was held that the bill was a good petitioning creditor's debt, although it appeared that, subsequent to the commission, the bill had been paid by the acceptors: ex. p. Douthat, 3 B. & A. 67, Eden, 48.

By 6 Geo. 4, c. 16, s. 19, no commission shall be deemed invalid, by reason of an act of bankruptcy, prior to the debt of the petitioning creditor, provided there be a sufficient act of bankruptcy subsequent to such debt. Before this statute, though the bankrupt himself could not, yet a debtor to the estate might, in an action by the assignees, upon proof of an act of bankruptcy prior to the petitioning creditor's debt, and of a sufficient debt, upon which a commission might be supported, resist the claim, and defeat the commission: Eden, 43.

Mode of Proving Petitioning Creditor's Debt.] "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 a bankrupt :" p. Buller, J., Abbott v. Plumbe, 1 Doug. 216. Therefore, if the debt of the petitioning creditor is on a bill of exchange drawn by the bankrupt, and endorsed by him to the petitioning creditor, besides adducing evidence that it was endorsed before the commission, it will be necessary, in order to prove the debt, to go regularly through the several proofs required in an action by an endorsee against the drawer. Where the debt arose on a bond, an acknowledgment of the bankrupt to a witness, that he owed the debt upon which the commission was sued out, will not supersede the necessity of calling the subscribing witness: Abbott v. Plumbe, 1 Doug. 216; see infra, as to proof by bankrupt's

admissions. Where the petitioning creditor had, upon an ap[*215] plication for a loan from a bankrupt delivered to him a check

on his banker for £100, which check had got back again to the hands of the petitioning creditor, as if satisfied, but he was unable to give positive proof that the check was actually paid, the check of itself was, in this case, held not sufficient evidence of a petitioning creditor's debt: Bleasby v. Crossley, 2 C. & P. 213. So, where the debt was an accept

ance of the bankrupt, and the assignees had had notice to prove the consideration, it was held, that though they were not bound to prove the consideration until impeached, yet that, not suing adduced any evidence, and the jury, from circumstances of suspicion attached to the case, having found a verdict for the deft., the court could not disturb that verdict: Abraham v. George, 11 Price, 423. An award of a separate debt due from the bankrupt to the petitioning creditor, upon a deed of reference by them and other persons, is sufficient evidence of the existence of the debt, on proof of the execution by all the parties: Antram v. Chase, 15 East, 209. So, an award is evidence of a petitioning creditor's debt, though a bill be filed to set it aside: ex p. Lingood, 1 Atk. 240; Marson v. Barber, Gow, C. 17; ante, 213. Where the petitioning creditor is assignee of another bankrupt, and his title, as such, comes in question incidentally, it must be strictly proved, Doe v. Liston, 4 Taunt. 741; but in the absence of any notice of an intention to dispute the debt, it is sufficiently proved by the production of the proceedings under the commission, unless they contain facts not in themselves sufficient to sustain the bankruptcy: Skaife v. Howard, 2 B. & C. 560, 4 D. & R. 37; and, if the debt be due to the petitioning creditor, as executor, it is not necessary to produce the probate, in order to prove that he was executor, p. Abbott, C. J., ib. 562; though, in Rogers v. James, 7 Taunt. 147, 2 Marsh, 425, it was held, an executor might support a commission, though the probate was on an insufficient stamp, if a valid probate be afterwards obtained, for it will have relation back; and, upon the same principle, an executor will be a good petitioning creditor, though there be no probate when the commission is sued out, if there be one before the adjudication of the commissioners: ex. p. Paddy, Buck. 235; 3 Mod. 241.

An acknowledgment or admission of the bankrupt before his bankruptcy, is also evidence of the petitioning creditor's debt, Watts v. Thorpe, 1 Camp. 376, Hoare v. Coryton, 4 Taunt. 560; but an acknowledgment or declaration after the bankruptcy is not admissible in evidence: Smallcombe v. Bruges, 13 Price, 136; M Clel. 48, s. c.; Sanderson v. Laforest, 1 C. & P. 46. Admissions made after the act of bankruptcy, but before the issuing of the commission, are not sufficient; Robson v. Kemp, 4 Esp. Rep. 234; Hoare v. Coryton, 4 Taunt. 560; sed vide Dowton v. Cross, 1 Esp. Rep. 168; Brett v. Levett, 13 East, 213. The demeanour and conduct of the bankrupt before the commissioners, has been held to be evidence of an implied admission that a balance is due, and a question to be left to a jury; but it is not evidence of an adjudication by the commissioners, or of an award made by consent of the parties, Jarrett v. Leonard, 2 M. & S. 265, Eden, 336; but, an admission by the bankrupt of a debt to the executors of D., is not sufficient to support an averment that the debt was due to plts. as executors of D., without also proving that they assented to act in discharge of the trust: Rex v. Barnes, 1 Stark. 243. The debt will be sufficiently established, by proving entries of the bankrupt, or an account signed by him before his bankruptcy: Hoare v. Coryton, 4 Taunt. 560; Watts v. Thorpe, 1 Camp. 376. Such entries must, however, be

clear and unequivocal, and proved to have been made before the bankruptcy. See further, post.

Proof of TRADING. As to the persons who shall be deemed traders liable to become bankrupt, it is enacted by 6 G. 4, c. 16, s. 2, "that all bankers, brokers, and persons using the trade or profession of a scrivener, receiving other men's moneys or estates into their trust or cus[*216] tody, and *persons insuring ships or their freight, or other matters, against perils of the sea; warehousemen, wharfingers, packers, builders, carpenters, shipwrights, victuallers, keepers of inns, taverns, hotels, or coffee-houses; dyers, printers, bleachers, fullers, callenderers, cattle or sheep-salesmen, and all persons using the trade of merchandise, by way of bargaining, exchange, bartering, commission, consignment, or otherwise, in gross or by retail; and all persons who, either for themselves, or as agents or factors for others, seek their living by buying and letting for hire, or by the workmanship of goods or commodities, shall be deemed traders liable to become bankrupt: provided that no farmer, grazier, common labourer, or workman for hire, receivergeneral of the taxes, or member of or subscriber to any incorporated, commercial, or trading companies, established by charter or by act of Parliament (13 and 14 Car. 2, c. 24, extended to all companies), shall be deemed, as such, a trader, liable, by virtue of this act, to become a bankrupt."

The trading should be proved, by showing that the party comes within the denominations of persons exercising some one of those particular trades specified in the above section, or within the general description of a trader. Whether a party was a trader within the meaning of the act, is a question for the decision of the judge upon the several facts found by the jury. The general words in the commission of the bankrupt being a "dealer and chapman," and that he got his living by buying and selling, will admit of evidence of any species of trading, though the commission also describe the particular trade carried on by the bankrupt: Hall v. Small, 2 B. & B. 25; ex. p. Herbert, 2 Rose, 248; 2 V. & B. 299. The declarations of the bankrupt before the bankruptcy have been admitted in evidence, to prove the trading, Parker v. Barker, 1 B. & B. 9; though, indeed the propriety of admitting such evidence has since been questioned: Bromley v. King, R. & M. 228.

We shall first consider what person is a trader within the statute, under the general description therein, viz. "that all persons who, either for themselves, or as agents or factors for others, seek their living by buying and selling, or by buying and selling for hire, or by the workmanship of goods or commodities, shall be deemed traders, liable," &c. Secondly, what person is a trader using the particular trades specified in the statute; and, lastly, who cannot be made a bankrupt.

To prove a person a trader by buying and selling within the above general description in the act, it must be shown that he purchased articles of merchandise for the purpose of selling them again at a profit: 2 B. & C. 475-6: 3 D. & R. 676; Hankey v. Jones, Cowp. 750. And, generally, whenever a man buys with the intention of selling again,