one of the plaintiffs had promised to provide for it; a release given by one being binding on the rest. Richmond v. Heapy, 1 Stark. 202. Although it was at one time doubtful, whether in case of bills or notes indorsed to the petitioner, after the bankruptcy, the indorsee would be entitled to a commission, Ex parte Lee, 1 P. Wms. 783, yet it is decided that such a debt is sufficient. Ex parte Thomas, 1 Atk. 73. Anon. 2 Wils. 135. Bingley v. Maddison, 1 Co. B. L. 13. 1st ed. 22. 2d. ed. Thus, where the petitioning creditor's debt did not amount to 100l. at the time of the act of bankruptcy, but was increased to more than that sum by a promissory note of the bankrupt due at that time, and indorsed to the petitioner before he petitioned for the commission, the court of King's Bench held that there was a sufficient debt to support the commission, Lord Kenyon observing, that it had been several times decided, that it was not necessary the debt should exist in the petitioning creditor at the time of the act of bankruptcy. Glaister v. Hewer, 7 T.R. 498. But it must appear that there was a good petitioning creditor's debt in the petitioner at the time of the petition, and therefore it must be shewn that the bill or note was indorsed to the petitioner before he petitioned. Rose v. Rowcroft, 4 Campb. 245. see ante, p. 25. So, it must appear, that the debt upon which the commission is founded was in existence at the time of the act of bankruptcy, though, as already stated, it is not necessary to shew it existing in the petitioner at that time. Moss v. Smith, 1 Campb. 489. Where a trader is indebted in more than the amount of 1001. and draws a bill for part of the amount, reducing the debt below 100l. which bill is accepted by the drawee for the accommodation of the drawer, and is given to the creditor, who, on its being dishonored neglects to give notice to the drawer, the creditor has still such a debt as will support a commission. Bickerdike v. Bollman, 1 T. R. 405. ante, p. 222. Where there is a good petitioning creditor's debt, and a promissory note is given for the amount on a wrong stamp, the previous debt still remains, and is sufficient to support a commission. Ex parte Geddes, 1 G. & J. 419. ante, p. 33. When a promissory note is given to the wife, dum sola, the husband alone may petition for a commission. Ex parte Barber, 1 G. & J. 1. M'Neilage v. Holloway, 1 B. & A. 218. ante, p. 58. Proof of bills and notes--what bills may be proved.] By stat. 6 Geo. 4. c. 16. s. 51. any person who shall have given credit to the bankrupt upon valuable consideration, for any money, or other matter or thing whatsoever, which shall not have become payable when such bankrupt committed an act of bankruptcy, and whether such credit shall have been given upon any bill, bond, note, or other negotiable security or not, shall be entitled to prove such debt, bill, note or other security, as if the same was payable presently, and receive dividends equally with the other creditors, deducting only thereout a rebate of interest for what he shall so receive, at the rate of five per cent. to be computed from the declaration of a dividend to the time such debt would have become payable, according to the terms upon which it was contracted. In general, such bills and notes only are proveable as could have been enforced at law or in equity. See Ex parte Dewdney, 15 Ves. 495. Therefore where the consideration of a bill is illegal (see ante, Chapter V.) it cannot be proved, provided the transaction be such as to avoid it in the hands of the person who seeks to prove it. Where a stockbroker having a large sum of money in his hands to be employed in stock-jobbing transactions, contrary to stat. 7 Geo. 2. c. 8., diverted part of that money to his own use, and gave promissory notes for the balance remaining in his hands, and became bankrupt, the chancellor would not permit the notes to be proved, so far as they were given for the fruit of the illegal use of the money lodged with the bankrupt, but permitted them to be proved to the extent of the money put into his hands and diverted to his own use. Ex parte Bulmer, 13 Ves. 313. So where a bill was indorsed to a broker in consideration of money paid by him in effecting insurances, one of which was illegal; the acceptor becoming bankrupt, the petition of the broker to prove was dismissed as to the part which arose on the illegal insurance, and an inquiry was directed as to the rest, the chancellor observing, "the equity is, that where the consideration consists of two parts, one bad, the other good, the bill shall stand as to what is good." Ex parte Mather, 3 Ves. 373. See ante, p. 115. With regard to bills or notes payable on demand, it has been held that they are proveable, though no demand has been made before the act of bankruptcy. Ex parte Beaufoy, Co. B. L. 159, ante, p. 269. Where a note was given in this form, "On having twelve months' notice, we jointly and severally promise, &c. to pay, &c. 2001. for value received, with lawful interest,' the court of King's Bench held it proveable against the estate of one of the makers, who became bankrupt before any notice was given. Per Abbott, C. J. "We have decided on more than one occasion, that the expression value received,' in a note, imports received from the payee.' The note in question may therefore be read thus, We acknowledge to owe the payee 2001., and promise to pay him that sum with interest twelve months' after notice.' If so, there is not any contingency as to the debt, for that is admitted to be due. Nor is the time of payment contingent in the strict sense of the expression, for that means a time which may or may not arrive; this note was made payable at a time which we must suppose would arrive. But no notice was given, and therefore no action could be maintainable at law at the time of the bankruptcy. The stat. 7 Geo. 1. c. 31. was made to remedy such evils, and provides for the proof of debts payable in futuro, and provides also for a rebate of interest. Can then such rebate be made here? I think it may. The interest will cease, and then the effect will be the same as if the note had been payable at a certain period after date." Clayton v. Gosling, 5 B. & C. 360. 8 D. & R. 110. S. C. So where the bankrupt had given the following note, "I promise to pay M. E. or order, after three months' notice, the sum of 150l., together with interest due thereon for value received," and two years interest had been paid prior to the commission, but no notice had been given; on a petition by the payee to be admitted to prove, the Lord Chancellor said he had conversed with the judges upon it, and in concurrence with them, he thought that the payment of interest was a material circumstance in the case, and was to be considered as evidencing that the parties had dealt with the note as an immediate debt, and that upon the particular circumstances, therefore, the petitioner should be admitted to prove his debt and interest up to the commission. Ex parte Elgar, 2 Glyn & Jam. 1. But where in a note payable with interest, there was this clause, "It is agreed that six months' notice be given before payment is required," and interest was paid, after which the maker became bankrupt; on a petition to be admitted to prove the debt, the Vice Chancellor held that as no action would lie for this debt at the time of the bankruptcy, and as this case was not provided for by any statutory enactment, the petitioner could not be admitted to prove. Ex parte Downman, 2 G. & J. 85. However, on appeal, the order of the Vice Chancellor was reversed on the authority of Ex parte Elgar, and Clayton v. Gosling. 2 G. & J. 241. So bills or notes, which on account of some defect in their form, or for want of a stamp, Ex parte Manners, 1 Rose 68, cannot be made available at law, are not proveable. Thus a note, whereby the maker promised to pay at such period as his circumstances would admit, without detriment to himself or family, cannot be proved, for on account of the contingency it is no promissory note. Ex parte Tootell, 4 Ves. 372. and see ante, p. 12. to p. 17. So promissory notes, payable in cash or in Bank of England notes, are not promissory notes within the statute of Anne, and the holder who has received them from an immediate person, is not entitled to prove them against the estate of the maker. Ex parte Imeson, 2 Rose, 225. Ex parte Davison, Buck, 31. Nor can there be any proof upon a bill or note, if the bankrupt has not upon the face of it become a party to it; unless in the case of a parol acceptance; Ex parte Dyer, 6 Ves. 9., now by Stat. 1&2 G. 4. c. 78. ante, p. 173. confined to foreign bills. Thus on a petition to expunge the proof of a debt on a bill, which the bankrupts had procured to be discounted, but which they had not indorsed, the Lord Chancellor said, that the man who discounts the bill is a purchaser of it, and that no contract arises between him and the person from whom he takes it, collateral to the bill. If the discounter indorse it, then the holder may of course call upon him as indorser, or prove the debt under his commission, if a bankrupt, and under the statute 7 Geo. 1. may prove the bill with a rebate; but if there be no indorsement by the party, the discounter must do what he can with the bill, but has no remedy against the party who brought it to him. His Lordship therefore directed the proof to be expunged. Ex parte Roberts, 2 Cox, 171, ante, p. 42. So though the party who gets the bill discounted, gives a written engagement, not on the bill, to warrant the payment of it, but does not indorse it, the bill cannot be proved on his estate. Ex parte Harrison, 2 Cox, 172. 2 Bro. CC. 614. S. C. In re Barrington, 2 Scho. & Lef. 112. Ex parte Hustler, 1 Glyn & Jum. 9. Upon the same principle, a person who passes a bill without indorsement, but who takes it up after the acceptor has become bankrupt, will not be allowed to prove it against the estate of the acceptor. Ex parte Isbester, 1 Rose, 20. Though the holder of a bill, who has discounted it, cannot prove on the bill itself, if he has taken it without indorsement, yet if he has taken an agreement to pay it, he may in some cases prove upon the agreement. On a petition to expunge the proof of a debt for money lent, it appeared that the creditor had discounted a bill, which the bankrupt did not indorse, but agreed to pay as if he were indorser. Per Lord Eldon, C. "The proof must be expunged. If the creditor can prove, it cannot be upon the bill, it must be upon the agreement, and this will depend upon the fact, whether the agreement was broken before or after the bankruptcy. Expunge the proof, without prejudice to the creditors applying to prove upon the agreement." Ex parte Bell, 19th April, 1820, 1 Mont. B. L. 194. (n.) 3rd Ed. But where a bill is given for an antecedent or concurrent debt, without indorsement, and is not taken as payment, and is dishonored, the original debt as already stated, ante, p. 95. to p. 99. is not extinguished, and although the party taking the bill, cannot make any claim on the estate of the party from whom he took it, on the bill itself, yet he may prove for the amount of the debt for which it was given. Ex parte Blackburn, 10 Ves. 206. Ex parte Rathbone, Buck, 215. Where a bill is payable to a fictitious payee, the holder for a valuable consideration may prove upon the estate of the indorser; Ex parte Clark, 3 Bro. C C. 238; or of the prior parties privy to the fictitious transaction. See ante, p. 24, 19 Ves. 311. Where a bill has been lost by the holder, he may be permitted to prove it on giving an indemnity to the satisfaction of the commissioners. Ex parte Greenway, 6 Ves. 812. In general the circumstances which at law operate to discharge the liability of the different parties to bills, will prevent the bills from being proved. See ante, Chap. IV. Thus where the holder of a bill gives time to the acceptor, or receives a composition from him without the consent of the assignees, the estate of the drawer who has become bankrupt will be discharged, and the holder cannot prove. Ex parte Smith, 3 Bro. C C. 1. Ex parte Wilson, 11 Ves. 410. ante, p. 74. Ex parte Gifford, 6 Ves. 807. So the holder of a bill will be prevented from proving it by laches, in not giving due notice of dishonor. ante, Chup. IX. Ex parte Heath, 2 Ves. & B. 240. In one case, Lord Eldon C. held, that the notice to be available must come from the holder of the bill; Ex parte Barclay, 7 Ves. 597; but that doctrine has since been overruled. Ante, p. 97. Where the claim upon a bill or note is barred by the statute of limitations, it cannot be proved. Ex parte Dewdney, 15 Ves. 479. Ex parte Roffey, 19 Ves. 468. 2 Rose, 245. S. C. Where a Proof of bills-time of holders becoming party to.] man draws, indorses or accepts a bill, it is a present debt, though payable in futuro, and where he afterwards becomes bankrupt, any person taking the bill for a valuable consideration after the bankruptcy, will stand in the place of the holder at the time of the bankruptcy, and may prove against the estate of the party becoming bankrupt, to the same amount as the holder of the bill at the time of the bankruptcy could have proved. Ex parte Deey, 2 Cox, 423. Ex parte Brymer, Co. B. L. 165. Ex parte Thomas, 1 Atk. 73. Glaister v. Hewer, 7 T. R. 498. Thus where the petitioner's testator had bought up the notes of the Salisbury bank, after their bankruptcy, on a petition to prove these notes, there being no evidence from whom the testator bought the notes, or that they were the subject of proof in the hands of the former holders, the Vice Chancellor said, "I cannot make an order according to the prayer of the petition. There can be no proof in respect of these notes, unless it be established that at the time of the bankruptcy they were in the hands of holders, who were entitled to prove them under the commission. The only order I can make will be to allow the petitioner to go again before the commissioners for the purpose of shewing that the testator purchased the notes from bona fide holders entitled to a proof in respect of the notes they individually held." The case of the Portsmouth bank was mentioned, where the sailors of several ships had received their wages and prize money in the notes of that bank, and the Admiralty, to prevent discontent in the Fleet, had taken up the notes from the sailors, and afterwards applied to prove the amount against the estate of the bank; upon which occasion, the Lord Chancellor made the order, with a direction that the Admiralty should not interfere in the choice of assignees. Ex parte Rogers, Buck, 490. So |